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

HCAL 1414/2021

[2026] HKCFI 2345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1414 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 8 October 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Director of Immigration (the “Director”) dated 28 April 2020 (the “Director’s Decision”); and (2) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 17 September 2021 (the “Board’s Decision”).

2.The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed.

3.In the Form, the Applicant named the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

4.The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 12 January 2026 and the Applicant attended in person. The Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application. 

Background

5.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.The applicable legal principles relating to application of this sort 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 decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state 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 or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant stated that the Board had erred in §30 of the Board’s Decision, and had attached a document entitled “Grounds” to explain why he said so.

8.I have considered the Board’s Decision in detail, in particular §30 thereof.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Decision was comprehensive with adequate reasons provided.  The Board was entitled, and indeed correct, to find that there are some aspects of the Applicant’s account set out in the NCF to be lacking in detail, and which are also inconsistent with his account without plausible explanation (§30 of the Board’s Decision).  The Board had in fact given some examples in support of its finding (§30 of the Board’s Decision).  I have carefully considered the points made in the supporting Affirmation (including the attached “Grounds” thereto, but do not consider that they demonstrated any errors in the Board’s Decision.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

9.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

10.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 29^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