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

HCAL 891/2021

[2026] HKCFI 1275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 891 of 2021

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 Levy:

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

3.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 June 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 28 April 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 17 January 2020 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000891_2021_files/the_Board's_Decision.pdf

4.In his Form 86, the applicant named the adjudicator of the Board as the proposed respondent and did not name any interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

5.The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by the father of his late wife (who had been killed by her brother) due to the objection of the family to the applicant’s marriage to the former’s daughter. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

6.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 13 January 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

7.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In his Form 86, the applicant averred that in general terms that the Board had unlawfully fettered its decision, that it acted in a procedurally unfair manner and that the Board’s Decision was unreasonable and irrational. In his supporting affirmation, the applicant raised grounds in relation to both the Director’s Decision as well as the Board’s Decision. For those concerning the Board’s Decision, broadly stated, the applicant averred that the Board was not fair by failing to make appropriate arrangements in relation to the hearing bundle and that it had significantly relied on the source of news which was not officially recognized or hearsay.

9.At the hearing, this court asked the applicant to clarify his allegations that had not been given sufficient time and that there was a lack of arrangement in relation to the hearing bundle. The applicant said that the allegations were mainly directed against the Director, not against the Board. The applicant stated that he had nothing to say and only asked the court to have sympathy on him and not to have him refouled.   

10.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the Board found that due to the numerous inconsistences of the applicant’s evidence of which the applicant could not explain, it concluded that the applicant’s central core of the applicant’s claims was manufactured and not credible. The Board found that the applicant would not face any risk of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

11.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s proposed grounds of appeal in the Form 86 were vague and did not condescend to particulars. As for the allegations in the supporting affirmation, the applicant had confirmed that they were only concerned with the Director’s Decision and were not directed against the Board. All in all, the applicant provided no reasonably valid grounds at all in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

12.The Form 86 be amended on the court’s own motion.

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

Dated the 13^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