Nadeem Iqbal v. Non-refoulement Claims Petition Office

HCAL 1467/2020

[2025] HKCFI 5224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1467 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the Non-refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “decision by Non-refoulement Claims Petition Office” in place of “dicision by Appeal Board”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Pakistan. By a Form 86 filed on 14 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 14 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision, said to be one of the Torture Claims Appeal Board (“TCAB”), but which was actually one of the Non-Refoulement Claims Petition Office (“NRCPO”), made on 9 June 2020 (“the NRCPO Decision”)[1]. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.The Applicant sought an oral hearing of his application. He attended the oral hearing which took place on 7 August 2025, and had nothing to say in addition to the matters set out in the papers.

3.I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent and of the proper Putative Interested Party, as well as the nature of the decision.

Background

4.This is set out in the NRCPO Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant lodged a torture claim[2] which was rejected by the Director of Immigration (“Director”) in a decision dated 20 September 2012 (“Director’s Decision”);

(2)  The Applicant appealed that claim to the TCAB, which dismissed the appeal on 22 October 2012;

(3)  The Applicant then made a claim for non-refoulement protection on the other grounds available under the USM, on the basis that if he were sent back to Pakistan, he would be harmed or killed by members of the ATI due to his past conflict with them over his brother. That claim was assessed on all applicable remaining grounds, namely BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and was rejected by the Director in a decision dated 5 October 2018 (“Director’s Further Decision”);

(4)  The Applicant petitioned to the NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 8 November 2019; and

(5)  The NRCPO issued the NRCPO Decision on 9 June 2020, in which it found that the Applicant was not entitled to non-refoulement protection on the three applicable grounds, refused the Applicant’s petition, and confirmed the Director’s Further Decision.

Legal Principles

5.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or the Affirmation, there is no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

9.Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.The NRCPO set out the Applicant’s background, immigration, and procedural history (Paragraphs 1 to 7), and the Applicant’s claims as made to the Director and to the NRCPO, as well as discussion of such at, and relevant developments that followed, the hearing (Paragraphs 8 to 28). The decision-maker then assessed the Applicant’s claim with regard to relevant principles, information, evidence, and COI, and made relevant findings of fact (Paragraphs 29 to 40). It was with regard to those findings that the NRCPO assessed that the Applicant’s claims that he would face BOR 3 Risk and Persecution Risk were not substantiated, as it was safe and reasonable for him to relocate to Karachi or Hyberabad. BOR 2 Risk was also not established on the facts. Accordingly, the Applicant was not entitled to non-refoulement protection as claimed and the Director’s Further Decision was confirmed (Paragraphs 41 to 66).

11.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the NRCPO Decision or justify the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence and internal relocation, which are matters primarily within the province of the decision-making body. Nor do I see any reasonably arguable public law basis to vitiate the decision-maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk[6].

12.In the Affirmation, the Applicant states that he is not satisfied with the NRCPO Decision and claims that he “cant(sic) go back to my country at this moment because my life is not save(sic) in my own country. Please help me to stay here until my problem will be solved”. I do not see how such bare and unsubstantiated allegations are relevant to or assist the application for leave given the findings in, and my conclusions above as to, the NRCPO Decision, and as judicial review proceedings are not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (Lakhwinder Singh, supra).

13.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

14.In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

Dated the 11^th day of November 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1