NADEEM ASLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 901/2021

[2026] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 901 of 2021

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 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 22 June 2021, 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 11 May 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 13 September 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on BOR 2 risk ground[1]. The applicant’s other 3 grounds[2] had been rejected by the Director on 10 June 2015 against which appeal had been dismissed by the Board on 15 December 2016 (“Board’s Earlier Decision”). The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000901_2021_files/the_Board's_Decision.pdf

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

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by (i) discharged robbers after the applicant had given evidence against them ;(ii) the assailants involved in the assassination of the ex-minster of law who was a member of the Pakistan People’s Party (“PPP”); (iii) by members of the PPP as the applicant supported the opposite party, Muslim League (N) and; (iv) the family members of his ex-wife as they disapproved the marriage. Further, the applicant also claimed that he would face religious discrimination by the Shiya as the applicant was a Sunni. 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 scheduled a hearing on 13 January 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.[3] 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[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant provided no such grounds in either the Form 86 or the supporting affirmation.

7.  At the hearing, the applicant asked the court to allow him more time to obtain more documents from Pakistan. He said that at the hearing before the Board, he was legally unrepresented, and that he was uneducated. Hence, it was not possible for him to submit documents. He would also like to have time to apply for Legal Aid.

8.  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 the applicant would not suffer any risk of harm under BOR 2 risk after having considered the additional evidence he had submitted to the Director. The Board also agreed with the decision of RM v General Paul Muttrie [6], which held that once a claimant did not succeed on BOR 2 risk, the claim on BOR 2 risk would not be arguable. Since one of the applicant’s claims on BOR 3 risk had been dismissed by a different constituted Board in the Board’s Earlier Decision, the Board therefore concluded that the applicant failed to make out his case under BOR 2 risk ground. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  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 submitted no written grounds in support of the Leave Application. Insofar as his submissions at the hearing, I do not think they have any merits. His intention of submitting new evidence will not assist the Leave Application. Neither his alluding to the requirement of more time to apply for Legal Aid had any relevance, when his application for Legal Aid was already been rejected before the hearing. All in all, the applicant provided no reasonably valid grounds at all in support of the Leave Application. 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[7].

Orders

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

11.  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