KHAN AAMIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 749/2020

[2025] HKCFI 4185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 749 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 Applicant’s Form 86 be amended to name the Board as the only putative respondent, the DI as the only putative interested party and the Board’s 2020 Decision as the only decision sought to be reviewed; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 23 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decisions of (i) the Director of Immigration (“DI”) dated 24 April 2018 (“DI’s Decision”) and (ii) an adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 17 April 2020 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  In the oral hearing before this Court, I explained to the Applicant the DI’s Decision has been superseded by the Board’s Decision in law.  Upon my explanation, he clarified that he only sought to review the Board’s Decision.  On my own motion, I amended the Form 86 as per paragraph 1 of my order above.  

3.  The Applicant is a national of Pakistan who came to Hong Kong in around January 2016.  His non-refoulement claim was based on the fear of being harmed or killed by his uncle and his family in connection with a private land dispute.

4.  The Applicant set out a few grounds on which relief is sought in the Form 86.  By reason of the legal position and the Applicant’s clarification mentioned in paragraph 2 of these “Observations for the Applicant” above, I would only focus on those arguments against the Board (but not those on how the DI made the DI’s Decision).

5.  First, the Applicant said the Board’s decision was irrational and had no regard to Article 2 of the Hong Kong Bill of Rights (“BOR2”).  I disagree.  Looking at the nature of the Applicant’s claim and the section the Board designated to BOR2 analysis, it is obvious the outcome of dismissing the Applicant’s claim was within the reasonable range of decisions it could make and there was regard to the Applicant’s right under BOR2.

6.  Secondly, it was said the Board placed too much reliance on country of origin information but not the Applicant’s personal background.  I disagree. From a reading of the Board’s Decision, it was obvious the Board did not just focus on country of origin information; sufficient regard on the Applicant’s particular circumstances have been assessed and considered.

7.  Thirdly, it was said the Board was unfair when not accepting explanations given by the Applicant and was unfair in requiring him to respond to questions he was not in a position to answer.  There have been no particulars of what explanations given were not accepted and what questions put to him was unfair.  To the contrary, I note from the Board’s Decision the Applicant did not want to answer different questions put to him, e.g. a factual question of when he last lived in his family home (see paragraph 41 of the Board’s Decision).

8.  I have reviewed the Board’s Decision vigorously.  In my judgment, the decision was supported by sound factual findings and the Board had conducted an anxious scrutiny of the available evidence and information.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the administrative decision-maker.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

9.  The leave application to apply for judicial review is thus 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