MUHAMMAD SHAKEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1157/2020

[2025] HKCFI 3849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1157 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 documents and the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 11 June 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 26 March 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 4 October 2018 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents. The Applicant did not name any interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

4.  The Applicant requested an oral hearing for the application. The hearing took place on 21 July 2025. Notice of hearing was issued to the Applicant in advance at the address provided by the Applicant on the Form . On 16 July 2025, the Court received the returned mail indicating that the Applicant had moved. Attempt was also made to contact the Applicant on 18 July 2025 by phone (at the number provided by the Applicant on the Information Sheet and on Form No. 8) to remind the Applicant of the hearing. However, the number was found not to have been registered. The Applicant did not attend the hearing. As the Applicant has not filed any change of address, and notice of the hearing was issued to the Applicant at the address provided by him, I shall proceed to determine the Leave Application in the absence of the Applicant.

Background

5.  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[1] is included below for reference.

Discussion

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

7.  The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant provided a number of grounds which can generally be summarized as follows:-

(1)  The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test). The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).

(2)  The Board had failed to give the Applicant sufficient time and chance to arrange relevant evidence in support of his claim and appeal.

(3)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case. The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles. The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(5)  The Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(6)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had complied reports on the matter which supports the Applicant’s assertions.

(7)  The Director had failed to attain the high standard of fairness required by the Wednesbury test. As such, the Director’s Decision is unreasonable.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below. In so far as the Applicant’s complaints are made against the Director, I refer to my observation and ruling in §2 above. I shall further consider such complaints as if the complaints were made against the Board as well.

9.  In relation to point (1) above, the Board had correctly considered and applied the laws relating to Article 2 of the HKBORO (§§52, 56-87, 90 of the Board’s Decision and the principles set out in Appendix A to the Board’s Decision). There was no error committed by the Board in this regard.

10.  In relation to Point (2) above, the Applicant was given more than a month’s notice in respect of the hearing before the Board on 17 December 2019 (§13 of the Board’s Decision). I also note that the Applicant attended the hearing on 17 December 2019 and was given the opportunity to present his case and evidence with the assistance of an interpreter (§14 of the Board’s Decision). Accordingly, the Applicant’s complaint about the lack of time and chance to submit evidence has no merits. I further note that the Applicant did not make this complaint before the Board. In any event, the Applicant has completely failed to identify precisely what evidence the Applicant intended to submit and the relevance thereof.

11.  In relation to Point (3) above, the Applicant’s claim is based on the allegation that he was in fear of being subjected to ill treatment or death in Pakistan because of a land dispute with his paternal uncle (§§16-26 of the Board’s Decision). There was no allegation or evidence to suggest that the state or any public officials were involved, or that the alleged acts of his uncle were committed on behalf of the state. Accordingly, this ground has no relevance in the context of the case.

12.  In respect of point (4) above, the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight.

13.  In respect of Point (5) above, the Applicant has failed identify the evidence which he alleged the Board had failed to take into account or give sufficient weight. Further and in any event, the Applicant has failed to explain how this is relevant to the claim in the light of the Board’s finding in §§56-76 of the Board’s Decision. There is also nothing to indicate that the Board’s observations on state protection are erroneous (§§77-79 of the Board’s Decision).

14.  In relation to point (6) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. The alleged corruption and incompetence of the administration in Pakistan is not relevant given the Board’s finding in §§56-76 of the Board’s Decision. In any event, the Board did carefully considered the alleged problem in Pakistan (§§53-55 and 77-79 of the Board’s Decision).

15.  Point (7) above is a general assertion without particulars in support. The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

16.  Having fully considered the Board’s Decision. 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. In particular, the Board was entitled to reject the Applicant’s claims based on the evidence (§§56-82 of the Board’s Decision). The grounds in support of the Leave Application summarized above should be considered in the light of such findings. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

17.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

18.  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, as well as the grounds advanced by the Applicant.

Conclusion

19.  In the premises, I make an order that the Form be amended as described above and the Leave Application be 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