Tariq Masih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 766/2022

[2026] HKCFI 5027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 766 of 2022

BETWEEN

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 documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Bonnie Cheng:

1.  Form 86 be amended, naming the Director of Immigration as putative interested party.

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

Observations for the Applicant:

Introduction

1.By Form 86 dated 15 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 3 August 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 30 September 2021.

2.The Form 86 omitted to name the putative interested party. I therefore amend the Form 86 on my own motion to name the Director as putative interested party.

3.An oral hearing, which was requested by the Applicant, took place before me on 3 March 2026. The Applicant attended in person.

4.At the hearing, the Applicant submitted a handwritten letter written by a friend, and asked to be allowed to stay in Hong Kong given his problems.

Background

5.The Applicant is from Pakistan. His background and the basis of his application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

6.In short, the Applicant claimed to be in fear of being persecuted as a Christian and a member of the PPP, and of harm due to dispute over his church’s land with Muslims in his home village.

Discussion

7.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

8.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

9.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

10.In the Leave Application, the Applicant has not stated any ground of judicial review. He has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

11.In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. The Board assessed the evidence in detail and gave adequate reasons for its decision. In particular:

(1)  The Board considered the Applicant’s evidence at the hearing extremely evasive and general, and observed that he did not wish to answer questions about his claims. For example, the Applicant claimed to fear harm in his village as a Christian yet stated that his wife and daughters had continued to live there, and refused to answer questions on what they have been doing: §§48, 51.

(2)  The Board had serious concerns about the Applicant’s refusal to provide any meaningful explanation on how he was able to live in Iran for some 8 years, his refusal to answer any questions about the events affecting his family from 2011, and his claim to be unable to recall any of the events leading to his departures from his village: §53.

(3)  In any event, the Board took the view that reasonable state protection would be available to the Applicant if he should return to his country; alternatively it would be reasonable for him to relocate to another area such as Lahore: §66.

12.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.

Conclusion

13.I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 7^th day of September 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