SHAHZAD WASEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2512/2020

[2026] HKCFI 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2512 OF 2020

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 the documents and the Applicant being absent in open court;

(1)  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 30 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 2 December 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 6 September 2018.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application but he was absent at the hearing. I shall deal with this application on paper.

Background

4.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed by his schoolmate (“T”) and T’s two elder brothers. The Applicant and T had a fight during a cricket game in 2009 when T wanted to bat the ball but the Applicant refused to let him. Soon after the fight his brothers came and they (together with T) assaulted the Applicant. Subsequent to the fight, T and his 2 brothers came with guns and fired at the Applicant but he escaped unharmed. T’s family was wealthy and influential, and one of T’s brothers was a criminal. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In his affirmation in support, the Applicant maintained that he remained in danger and the TCAB incorrectly rejected his claims “without any proper inquiry and without carefully understanding [his] situation”.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-4] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [5-6, 14, 20-22, 25, 26-28] and properly considering Country of Origin information [16, 23 29], the Applicant’s allegations were insufficient to make out any of the applicable grounds [7-9, 10-13, 17-19, 23-24, 25, 29-30]. In particular, the TCAB held that the Applicant was dishonest and unreliable [31-34]. These were conclusions that the TCAB was fully entitled to come to.

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [18, 23, 24, 29, 30].

11.  I am not satisfied any of the complaints raised by the Applicant in his affirmation is made out. It is clear from the TCAB Decision that the TCAB carefully considered all the relevant facts and the Applicant was afforded a fair opportunity to present his case and materials (including an oral hearing although the Applicant did not request for one [4]).

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

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