AHMED FAIZAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 naming only the Director of Immigration as the Putative Interested Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 filed on 9 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 9 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 6 May 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, which he attended on 21 August 2025.  He said he had nothing to add.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent and the proper Putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by his paternal cousins Dil Nawaz and Dado and their people due to a dispute over land, and by the family of a murder victim;

(2)  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 27 August 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 21 November 2019; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 6 May 2020, in which it dismissed the Applicant’s appeal/petition, 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.  The Form 86 does not identify any grounds of judicial review. Rather, in the Affirmation the Applicant claimed that the TCAB Decision “is not fair to me” and then that the grounds on which relief is sought are certiorari, an oral hearing of the application “in the event of the Court”, and “such further or other remedy, relief, or order as may be just and expedient in the circumstances”. He then asked the court to take into account as “the above grounds”.

9.  None of these amount to grounds of judicial review. The complaint that the TCAB Decision is “unfair” is merely a generic, vague, and unparticularised assertion without reference to any underlying facts or matters establishing why, how, and where such gives rise or is relevant to a public law complaint.  This general assertion without particulars is not an effective ground to support a judicial review and cannot assist the Applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15). There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  Nevertheless, 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.

11.  The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history (including his appearance at the hearing with the assistance of an interpreter), and the relevant law and principles in relation to the four types of risk (Paragraphs 1 to 24), before it detailed the Applicant’s claims as made in the NCF and in his interview (Paragraphs 25 to 31).

12.  The TCAB/NRCPO then assessed the Applicant’s claims and evidence in detail with regard to the material to which it had been referred and the relevant principles, and to the salient evidence and issues. It gave detailed reasons as to why it had doubts about the Applicant’s credibility, with reference to the Applicant’s vague and generalised evidence and discrepancies on salient topics. It hence found that it was not satisfied that the Applicant’s paternal cousins had issued verbal threats, physically attacked the Applicant, opened fire on him in relation to a dispute over land, and that the scars the Applicant displayed had resulted from injuries obtained in the circumstances as claimed (which were amongst the core allegations of fact relied on in support of the Applicant’s non-refoulement claim). Accordingly, it was not satisfied that the Applicant faced a real risk of torture, CIDTP, deprivation of life, or persecution from his paternal cousins. It was also not satisfied that the family of the deceased (that is, the alleged murder victim) had threatened the Applicant or his brother directly, or through his paternal cousins. Again, these were amongst the core allegations of fact relied on in support of the Applicant’s non-refoulement claim. Indeed, even if the TCAB/NRCPO were to accept that the latter threats had been made, it considered that on the evidence and in the circumstances, the risk of the Applicant facing conduct amounting to severe pain or suffering, deprivation of life, or persecution, was remote (Paragraphs 32 to 51).

13.  The TCAB/NRCPO therefore considered there was no real risk that the Applicant would face any of the proscribed forms of harm if he were refouled, found that the Applicant’s claims for non-refoulement protection were not made out, and confirmed the Director’s Decision (Paragraphs 52 to 57).

14.  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, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the credibility, evidence, and risk of harm, which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  I am therefore 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 made the orders above, including that the application for leave to apply for judicial review 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