AFZAL MUHAMMAD SHARJEEL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1481/2020

[2026] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1481 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 is amended on the Court’s own motion, naming the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative 2^nd Respondent in place of “The Adjudicator of the Non‑refoulement Claims Petition office appointed to determine the Applicant’s petition”, and naming the Director of Immigration as the Putative Interested Party; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 filed on 14 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 14 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (exhibited to the Affirmation) of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”), made on 7 July 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application.  He appeared at that scheduled for 21 August 2025 and said he had nothing to add.

3.  I have amended the Form 86 of my own motion to reflect the role of the TCAB/NRCPO in these proceedings as a Putative Respondent, and the role of the Director of Immigration (“Director”) as a Putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by members of the PML(Q);

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director in a decision dated 17 September 2019 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 19 May 2020; and

(4)   The TCAB/NRCPO issued the TCAB Decision on 7 July 2020, in which it rejected the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The Form 86 does not identify any grounds of judicial review.  However, the Affirmation exhibited, and the Applicant apparently relies on, a single page document at Exhibit “AMS-(3)” containing several “Grounds on which Relief is sought” (“Grounds”) all of which have been adapted almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

(1)   At Paragraph 1 of the Exhibit, “The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non‑refoulement claim.  He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported back to his country.”  (Ground 1)

(2)   Also at Paragraph 1 of the Exhibit, “In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.” (Ground 2)

(3)   Various grounds at Paragraphs 2 to 4 of the Exhibit which all relate to the Director and the Director’s Decision, (Grounds 3) which I reproduce verbatim below:

“2. From the Director's Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant's case. This has indeed led to an unfair outcome of rejecting the Applicant's non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant's aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament to the applicant's assertions.  Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.  The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

9.  However, given the appeal/petition to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  Hence Grounds 3 and all of the allegations therein must be dismissed, and when considering Ground 1 I ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed. 

10.  The remaining portion of Ground 1 is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

11.  Nevertheless, given the seriousness of the issues at hand, and notwithstanding the similarly vague and unparticularised nature of Ground 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds. 

12.  The TCAB/NRCPO summarised the background, issues, immigration and procedural history, and the position before the decision-maker up to and at the hearing, as well as how it had treated COI (Paragraphs 1 to 7).  It then moved on to relevant principles in relation to the four types of risk (Paragraphs 8 to 25) before it addressed the Applicant’s case on the facts and salient topics which had been previously raised with the Applicants, including state protection and internal relocation (Paragraphs 26 to 39).

13.  The decision-maker then set out the issues and how they had been approached (including the standard of proof), what had happened at the hearing, the implications of the decision in Re Hidayah [2018] HKCA 595, and that he had accordingly made his decision on the basis of the information supplied in the HB, pursuant to which he found that the Applicant had not made out his case in respect of any of the four relevant grounds (Paragraphs 40 to 45).  He explained that Persecution Risk was rejected on the basis that there was no applicable real risk of harm if refouled, having regard to the evidence that the decision-maker considered to be credible, and the nature of the alleged attack on the Applicant.  BOR 3 Risk, BOR 2 Risk, and Torture Risk were also rejected for similar reasons, such as the lack of credible evidence.  It was also found, with reference to COI and the credible evidence, that reasonable state protection was also available to the Applicant and that the Applicant could relocate internally within Pakistan and it would not be unreasonable or unduly harsh for him to do so (Paragraphs 46 to 78).  Accordingly, the non‑refoulement claim failed on all grounds, the appeal/petition was rejected, and the TCAB Decision was confirmed (Paragraphs 79 to 80).  

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  In particular:

(1)   Ground 2 does not give rise to any reasonable arguable public law grounds (including of any divergence from the requisite high standard of fairness) that would justify a grant of leave.  Firstly, and as a matter of context, the Applicant was legally represented before the Director, and hence had already had ample opportunity at that stage to arrange relevant evidence in support of his claim.  Secondly, and given that the hearing before the TCAB/NRCPO took place over 8 months after the Director’s Decision, the Applicant had further ample time and opportunity to arrange (and to produce to the TCAB/NRCPO) all evidence relevant to his non-refoulement appeal/petition, and to prepare for his appeal.  Thirdly, there is no evidence that the Applicant complained about such issues (or indeed of any difficulty caused by such), or sought more time and/or an adjournment to arrange more evidence or to prepare for his appeal, whether at the hearing or at any stage prior to the TCAB Decision.  Indeed, and on the contrary, he specifically chose not to give evidence to the TCAB/NRCPO,  said that he would only rely on the information provided in the HB, and confirmed that there was no new information and he did not wish to amend any information provided therein (see Paragraphs 7 and 42).  Finally, and in any event, the Applicant has not provided any specifics of the evidence or matters relevant to his appeal that he claims he would have arranged, nor has he explained how such (or the apparent failure to allow him to “arrange” such) would have affected, impeached, or vitiated the analysis or conclusions reached in the TCAB Decision and hence prejudiced the disposal of his claim;

(2)   I do not see any reasonably arguable public law error that would justify the grant of leave in relation to the TCAB/NRCPO’s process of assessment, reasoning, and findings regarding the evidence, credibility, risk of harm, state protection, and internal relocation, which are matters primarily within the province of the decision-making body.  In particular, I do not consider that the circumstances of this case give rise to any reasonable argument that the claim was not fairly processed to a high standard of fairness.  Bearing in mind the TCAB Decision as a whole, and in particular Paragraphs 7 and 42 to 45 thereof, I consider that the Applicant was given sufficient indication that the decision-maker clearly had doubts about and was likely to (absent oral evidence from the Applicant) reject as implausible and/or not credible the Applicant’s underlying factual claims on the salient issues (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23-25, explaining Masud Md [2021] HKCA 1449).  It is also apparent that the Applicant appreciated and understood the ramifications of his position and approach, given that the Applicant had, in response to the TCAB/NRCPO’s explanation, repeated that he did not wish to answer questions or say anything further.  Secondly, and unlike in Hidayah, supra, the decision-maker made findings as to the credibility and plausibility of the Applicant’s factual case and evidence, and accordingly found that the Applicant had not (on the evidence) established the relevant risk of harm.  In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to such;

(3)   There is hence, and also, no public law basis (including any Wednesbury unreasonableness or irrationality, insofar as such are alleged by the remnants of Ground 1) to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have made the orders above, including that the 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