KHALID MEHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1282/2020

[2025] HKCFI 4160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1282 of 2020

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;

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 only the Director of Immigration as the Putative Interested Party;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan.  By a Form 86 dated and filed on 24 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 24 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 19 June 2020 (“TCAB Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application, which he attended on 6 August 2025. He made some brief submissions. I will address those below alongside the claim made in his Affirmation.

3.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claims non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed, ill-treated, or killed by people affiliated with the Taliban;

b.  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 15 October 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 28 April 2020; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 19 June 2020, in which it held that the Applicant was not entitled to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

5.  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 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  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).

7.  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 (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

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no 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.  However, 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 types of risk, the nature of the hearing and documents before it, the Applicant’s case and conduct of the hearing, and relevant principles relating to consideration of evidence including as to burden and standard of proof, sufficiency of materials, hearsay, past events, behaviour detrimental to credibility (as to which it also made a finding), COI, risk of harm (as to which it noted that the Applicant had accepted that his problems with the Taliban were personal in nature, and found that that the Taliban people were non-state actors), and the level of severity (Paragraphs 1 to 35).

11.  The decision-maker then moved on to summarise the Applicant’s case as to past events before making material findings of fact. He found that there was no, or no reliable evidence to show, and he did not accept, that the Taliban would harm or kill the Applicant if he were to return to Pakistan, that the Applicant faced risk throughout Pakistan, that the Applicant had suffered injuries or harassment to the required severity, or that the state of Pakistan was unwilling to help the Applicant for a Convention reason (Paragraphs 36 to 41).

12.  The TCAB/NRCPO then analysed Persecution Risk, concluding that it had not been established as there was no evidence of current risk to the Applicant, and there would be sufficient state protection available to him if he were refouled. It also found that, on the evidence and having regard to the relevant principles, the Applicant had failed to establish BOR 2 Risk, BOR 3 Risk, or Torture Risk (Paragraphs 42 to 78). The decision-maker also concluded that in any event internal relocation to Karachi or Hyberabad was available and suitable for the Applicant (Paragraphs 79 to 83). As the Applicant had failed to make out his claims for non‑refoulement relief in relation to all of the types of risk, the appeal/petition was rejected and the Director’s Decision confirmed (Paragraphs 84 to 88).

13.  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.  This is especially so as to the assessment, reasoning, and findings regarding the evidence and COI materials, risk of harm, state protection, and internal relocation,  which are all matters primarily within the province of the decision-making body, or as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  In the Affirmation the Applicant claimed that “I can’t go back to my country at this moment because my life is not save(sic) in my own country. Please help me to say here until my problems will be solved.” At the oral hearing he said that he needed “some time” as he had just gotten married, and that his wife (who was in court) was pregnant. I do not see how these bare and unsubstantiated allegations are relevant to or assist the application in any way, given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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