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

HCAL 2262/2020

[2026] HKCFI 1960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2262 of 2020

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) YW Hew:

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only the Director of Immigration as the Putative Interested Party; 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 India.  By a Form 86 filed on 16 November 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 16 November 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) / Non‑Refoulement Claims Petition Office (“NRCPO”) dated 15 October 2020 (“the TCAB Decision”)[1].  

2.The Applicant did not seek an oral hearing of his application, hence I have dealt with such on the papers.  I have amended the Form 86 on my own motion to reflect the identityof the proper Putative Respondent and Putative Interested Party.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

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

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by his cousin, Amir;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 7 December 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 25 August 2020 and issued the TCAB Decision dated 15 October 2020, in which it dismissed the appeal/petition.

Legal Principles

4.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 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.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).

6.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 (Peter 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

7.There are no grounds of judicial review specified in the Form 86.  As for the Affirmation, that merely alleges that the TCAB Decision is “unfair and unreasonable”. However, such generic, vague, and unparticularised assertions without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision are not effective grounds to support a judicial review, and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

8.There is hence no properly particularised allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB 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 TCAB/NRCPO set out the Applicant’s procedural and immigration history, then outlined the four relevant bases of risk with reference to relevant principles (Paragraphs 1 to 17).  It then summarised the facts of the Applicant’s case, moved on to the conduct of the oral hearing and its evaluation of the facts, found (having had regard to COI) that state protection was available to the Applicant, and had regard to salient concepts when it addressed Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk on the basis that the facts advanced by the Applicant were to be believed. It found that none of them were established given the nature of the dispute and past harm, the risk of harm, the availability of state protection, and (in relation to Persecution Risk) the lack of a Refugee Convention reason.  It also concluded that on the evidence, internal relocation (for example, to Karachi, Islamabad, or Rawalpindi) would not be unduly harsh for the Applicant.  Having considered all of the evidence, it dismissed the appeal/petition (Paragraphs 18 to 55).

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 TCAB Decision and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s risk of harm, state protection, and accordingly Torture Risk, BOR 3 Risk, and BOR 2 Risk. I also see no reasonably arguable public law basis for faulting the approach and conclusions relating to Persecution Risk.  Moreover, and in any event, the findings made in relation to internal relocation (which are within the province of the decision-maker, and which I see no reasonably arguable public law basis for faulting) would inevitably have led to the conclusion that there was no basis for affording the Applicant non-refoulement protection.

12.I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

13.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 16^th day of April 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