NADEEM ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 506/2021

[2025] HKCFI 5955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 506 of 2021

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 oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 12 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 8 April 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 23 May 2018.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add, he said that at the time of the hearing below, his daughter was not born. Now she is born, and is around 4 years old.

3.  I amend the Form 86 on my own motion to name the TCAB as the respondent.

Background

4.  The Applicant is a citizen of Pakistan. In gist, he fears that upon his return to his home country he will be harmed or killed by the family of Dilo as a result of incidents concerning the attempt to bring her back to resume cohabitation with the Applicant’s cousin, Mahmood which resulted in the latter’s death. 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. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

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. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would 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 state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available  and found that on the basis of the same, applying the correct legal principles in respect of the applicable grounds under the Unified Screening Mechanism[2], the Applicant’s allegations were insufficient to make out any of the applicable grounds [91-96]. In particular, the TCAB found that while part of his claims were credible, significant and critical parts of his claims were not [63]. Specifically, it was found that the Applicant had no direct involvement in the relevant killings, and Dilo’s family did not view him as the person responsible for the killing of Dilo’s brother [70, 73]. There was also no credible evidence to suggest that the Dilo family had any influence over the officials in Pakistan, or over the current governing party, such that they could utilise the resources of the authorities, or the intelligence and resources of the government, or the resources of the political parties, to locate and to harm or kill the Applicant [71, 74-81], nor was there sufficient evidence showing that he would be harmed (of the proscribed kind) by Pakistan police should he return to Pakistan [72, 82]. The TCAB further found that he would not be denied adequate police protection at an acceptable standard [84-85], and could relocate to other parts of Pakistan [86-90].

10.  I have also considered the Applicant’s oral submissions. The Applicant’s family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to his own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20].

11.  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 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