Asif Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 377/2022

[2026] HKCFI 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 377 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge (Non-Refoulement Claims) Calvin Cheuk:    

1.   Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 25 April 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 25 May 2021 (the “Director’s Decision”). [1]   

2.The Applicant named both the Adjudicator of the Non-refoulement Claims Petition Office and the Director as the proposed respondents, and the Board as the proposed interested party.  Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.The Applicant requested an oral hearing for the application.  The hearing took place on 2 February 2026 and the Applicant attended in person.  

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced were set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[2]

Discussion

5.The applicable legal principles in this area are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

6.In the Form and the supporting affirmation, the Applicant in summary sought to re-argue his case without identifying any errors of law, procedural unfairness or irrationality in the Board’s Decision.

7.At the hearing, the Applicant requested more time to stay so that he could talk to his opposing party.  Apart from that, he indicated that he had nothing further to add to his application.  Those submissions do not advance the present application.

8.In the present case, the Board carefully considered the Applicant’s evidence.  A hearing was conducted on 4 January 2022.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [65]-[90] of the Board’s Decision).  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

9.As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

10.For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

Dated the 10^th day of March 2026

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