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

HCAL 2404/2020

[2025] HKCFI 4698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2404 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 oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- (1) the date of the Director of Immigration’s decision be amended to 5 February 2020; (2) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (3) 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 8 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Director of Immigration (the “Director”) dated 20 March 2020; and (2) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 October 2020 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the application. The hearing took place on 25 August 2025 and the Applicant attended in person. At the hearing, I pointed out to the Applicant that the court is not aware of a decision of the Director dated 20 March 2020. However, there was a decision of the Director dated 5 February 2020 (the “Director’s Decision”) in respect of which the Applicant appealed to the Board. The Applicant responded by saying that he may have mistaken about the date and he was indeed referring to the decision dated 5 February 2020. Accordingly, I make an order that the date of the Director’s decision stated on the Form be amended to 5 February 2020.

3.  The Director’s Decision had already been superseded by the Board’s Decision.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 hereby dismissed.

4.  In the Form, the Applicant named the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents, and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

5.  At the hearing on 25 August 2025, apart from clarifying the date of the Director’s Decision stated on the Form, the Applicant indicated that he had nothing to say in respect of the Leave Application.

Background

6.  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

7.  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)

8.  The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant stated the following in support of the Leave Application:-

(1)  The Applicant claimed that the Board erred in §33 of the Board’s Decision because he cannot relocate anywhere in Pakistan. His alleged enemy will easily find and kill him. The Applicant also claimed that the state cannot provide him protection and there is corruption in Pakistan.

(2)  The Applicant also seemed to suggest that the Board erred in §61 of the Board’s Decision.

9.  I do not consider these points meritorious. In respect of the first point, the Board had duly considered the COI materials and noted that there is corruption and inefficiency in the Pakistani police force (§32 of the Board’s Decision). The Board however went on and noted that reforms have been ongoing and that the Pakistan government has taken practical steps to protect the rights of its citizens and to improve the effectiveness of its police force (§33 of the Board’s Decision). The Board then concluded that if the Applicant is to return to Pakistan, and if he faces similar threat and violence, provided that he promptly reports all the relevant facts to the police and seeks protection, and provided that he will resort to the available means of recourse made available by the Pakistani government if he encounters police inaction, corruption or abuse of power, he can expect the police to perform their duty diligently and take appropriate action to protect him (§34 of the Board’s Decision). I see no errors in the Board’s finding based on the COI materials. The Applicant has failed to explain how the Board had erred in coming to that conclusion.

10.  In so far as relocation is concerned, the Board’s decision can be found in §§35-37. Again, I do not see any errors committed by the Board in coming to the conclusion that internal relocation is an available alternative and would help to lower or negate the perceived risk of ill-treatment upon his return to Pakistan. The Applicant has failed to explain what errors the Board had allegedly committed in arriving at such conclusion.

11.  More importantly, the Board found the Applicant’s evidence incredible. The Applicant’s case was based on hearsay and speculation. The Board was not persuaded that the Applicant had been assaulted and threatened by Javaid and the Shia people as alleged (§73 of the Board’s Decision). As such, the Board found that there is no real chance that the Applicant will be harmed by Javaid and the Shia people if he is refouled (§74 of the Board’s Decision). The Board was entitled to come to such finding based on the evidence and I see no errors committed by the Board in arriving at such finding. Given the Board’s finding that there is no “risk”, the Applicant’s complaint in Point (1) above cannot assist the Applicant’s case.

12.  In respect of Point (2) above, the Applicant has failed to elaborate or explain the alleged error. In §61 of the Board’s Decision, the Board discussed the Applicant’s evidence and pointed out and explained why the Applicant’s evidence of the incident on the 10^th day of Muharram on 15 November 2013 was questionable. Again, I do not see any errors committed by the Board in this regard. Neither has the Applicant pointed out why he claimed that the Board had committed errors in that paragraph.  

13.  I have considered the Board’s Decision in detail. 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 with adequate reasons provided. The Board was entitled, and indeed correct, to reject the claim based on the evidence (§§57-97 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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.

14.  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

15.  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