ABBAS FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 258/2020

[2026] HKCFI 3093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 258 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 23 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 1 August 2018 rejecting the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000258_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Adjudicator of the Board as the proposed respondent.  As the Board should have been proper putative respondent, the Form 86 shall be amended accordingly.

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by the supporters of the Pakistan Muslim League (N). 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.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 28 April 2026.  A notice of hearing with a reminder[2] of the consequence of absence dated 10 April 2026 was sent to the applicant’s last known address by ordinary post.  The applicant was absent from the hearing.  Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail.  Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.  A leave application operates as a “filtering” process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision[3]. It is therefore 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[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the Form 86, the applicant averred that the Board was procedurally unfair and that the Board’s Decision was unreasonable and irrational.  In the supporting affirmation, the applicant alleged that the Board had wrongly relied on source of news which was not officially recognized or hearsay.  

7.  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.[5]  In the present case, the Board found that there was no logical reason as to why the PML-N targeted at the applicant.  The Board did not accept that the criminal charges which the applicant appeared to have faced had been brought because of his support for the PPP or because the PML-N wanted to take revenge on him.  The Board concluded that the applicant would not be at risk in any way from the PML-N or any of its members or at risk of being killed by the police.  The Board concluded that he would unlikely face any risk of harm if refouled.  The Board further found that internal relocation would be reasonably 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. 

8.  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 averments the applicant stated in the Leave Application were vague and unparticularized.  Hence, I find that 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[6].

Orders

9.  The Form 86 be amended on the court’s own motion.

10.  The applicant’s 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