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

HCAL 1346/2021

[2026] HKCFI 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1346 of 2021

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

Following;

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 27 September 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 3 September 2021 (the “Board’s Decision”).

2.  To ensure that the Board is properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant.  It took place before me on 22 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In short, the Applicant claims that he cannot return to Pakistan because he would be killed by his relatives (the “Adversaries”) because of a land dispute.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23.  Hence I shall set out the brief reasons for my decision below.

6.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal.  Though in non‑refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny 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, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.  It is trite law that, an applicant, even if unrepresented, is obliged to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.  However, the Applicant did not provide any grounds in support of the Leave Application in his Form 86 or his supporting affirmation. He also did not inform this court of his grounds of review at the Hearing.

8.  Notwithstanding the deficiency in the Leave Application, I have conducted a review of the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. 

9.  I see no basis to interfere with the Board’s finding that there is no evidence of any real risk of serious harm, as the Applicant’s case is largely based on bare assertions without any objective evidence in support.  Given the nature of the case as alleged by the Applicant, there should be an abundance of supporting documents (e.g. land title documents) available.  The Applicant has had a long period of time to obtain documentary evidence but has failed to do so (§§42, 62-63, 71-73).

10.  As found by the Board, the Applicant’s contention that he will not have protection in Pakistan or that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence.  The political influence of the Pakistan Muslim League “N” (with which the Adversaries are said to be associated with) has waned since it is no longer the ruling party in Pakistan (§§79-80).  In any event, given the Applicant’s background, education and experience, it would not be unduly harsh for him to resettle elsewhere in places like Lahore, which is the largest city in Punjab.

11.  In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

12.  In short, 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, Leave is refused.

Conclusion

13.  In the premises, I make an order that the Form 86 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