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

HCAL 626/2023

[2026] HKCFI 3219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 626 of 2023

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.  The stay under section 15(4) of the Legal Aid Ordinance (Cap 91) be uplifted forthwith.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 28 April 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 13 March 2023 (the “Board’s Decision”).

2.The Applicant requested an oral hearing for the Leave Application. The hearing was scheduled to take place on 11 May 2026. On 6 May 2026, the Applicant applied for legal aid.

3.The Applicant attended in person at the hearing on 11 May 2026. When asked about the substantial delay in applying for legal aid, the Applicant simply said he was not aware that he could apply for legal aid before.

4.I do not accept the Applicant’s explanation. First, the explanation was not given on oath. Given the substantial delay (3 years) in applying for legal aid, it is incumbent on the Applicant to provide valid explanation for the inaction before. Second, the Leave Application was filed on 28 April 2023, and the Applicant only applied for legal aid on 6 May 2026, i.e. shortly before the hearing for the Leave Application. If the Applicant was serious about the Leave Application, there is no reason why he would not have found out that he could apply for legal aid during the 3-year period. Third, and most importantly, as will be demonstrated below, the Leave Application is plainly unmeritorious. There is no reason why the case should be further adjourned because of the last-minute application for legal aid.

5.In the premises, I consider that the last-minute application for legal aid was a tactical move by the Applicant for the sole purpose of delaying the Leave Application. Notwithstanding section 15(4) of the Legal Aid Ordinance (Cap 91), I consider it appropriate that the stay be uplifted forthwith to avoid further delay of the proceedings.

Background

6.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 is included below[1] for reference.

Discussion

7.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 of Immigration (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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

8.The Applicant did not provide any grounds in support of the Leave Application on the Form. In the supporting Affirmation, the Applicant made a number of allegations all of which are unmeritorious. I shall briefly deal with them hereinbelow.

9.First, the Applicant claimed that the Board’s Decision was erroneous. However, no particulars have been provided to identify any alleged errors. There is accordingly no substance in such bare assertion.

10.Second, the Applicant alleged that the oral hearing before the Board was merely a formality, and that the Board only wanted to reject the Applicant’s claims. Again, no particulars have been provided to show any procedural unfairness before the Board, or that the Board had been unfair to the Applicant in the process. The Applicant’s accusation is no more than a bare assertion without evidence in support. When asked whether he had anything to say in respect of the Leave Application at the hearing on 11 May 2026, the Applicant indicated that he had nothing to say.

11.I further note that at the hearing before the Board, the Applicant had provided information which the Board had duly considered in the decision (§32 of the Board’s Decision).

12.I have considered the Board’s Decision in detail. 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 to find the Applicant’s case unrealistic and incredible based on the reasons provided (§§34-35 of the Board’s Decision). I see no errors in the Board’s reasoning. The Board was thus entitled to reject the Applicant’s claims (§§40-60 of 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.

13.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.  

Conclusion

14.In the premises, I make an order that the stay under section 15 of the Legal Aid Ordinance (Cap 91) be uplifted forthwith, and the Leave Application be dismissed.

Dated the 5^th day of June 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