SHAH MIR ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 265/2020

[2025] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 265 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 Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 24 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 31 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000265_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named both the Board and the Director as the proposed respondents and the Board as the proposed interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by family and community members who are victims of an investment scam that he unwittingly aided. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 28 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his Form 86 and supporting affirmation, the applicant raised a number of grounds for judicial review, which can be

(a)  The Board rejected his claim without any valid reason;

(b)  The Board erred by suggesting internal relocation, when it is not easy to relocate and the applicant cannot ask for help from the government;

(c)  The Board erred in finding that the applicant had nothing to fear from the National Accountability Bureau (“NAB”) that investigated the investment scam. Though the Board was correct that the NAB did not investigate the applicant, the victims have all complained to the NAB, and the applicant questioned how he could prove that he was not involved in the scam;

(d)  The Board erred in finding that the sums of money lost by the victims were not huge. The applicant stated that for the victims, whose livelihoods are in farming, those sums of money ae very large.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant told me that he had nothing to say, as his case was the same. However, he further told me that he had married a Chinese woman and had applied for a dependent visa 6 months after his marriage. He showed this court a screenshot of a letter from the Immigration Department dated 7 February 2025. The information on the said letter shows that there is an application for “entry for resident as a dependent in Hong Kong to join Ms Lau Ching Yee” ( the applicant’s wife).

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board rejected the claim on the basis that there was no real risk of harm.

10.  The Board pointed out that if the NAB had any basis to suspect he was (knowingly) involved in the scam, they would have already investigated him. However, as the applicant himself had confirmed, the NAB never contacted him before he left Pakistan. As for the victims of the scam, only one of them ever made threats to him in one isolated incident, but there were no further threats. Instead, according to the applicant the victims hired a lawyer to try to recover the money. Though the victims complained to the NAB, the complaints characterized the applicant as a victim, not the villain. Based on these facts, the Board found that there was no real risk of harm. The Board also found that state protection would be available and that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s written grounds are vague and general. Neither has the applicant provided any grounds at the hearing. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

12.  The Form 86 is amended on the court’s own motion.

13.  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