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

HCAL 866/2020

[2025] HKCFI 3201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 866 of 2020

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 Applicant’s Form 86 be amended to add the DI as a putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 11 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 16 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 18 September 2017. The Form 86 has identified the TCAB as both a putative respondent and a putative interested party. I amended the Form 86 on my own motion to name the TCAB only as a putative respondent and add the DI as a putative interested party.

3.  In his Form 86 and supporting affirmation, the Applicant alleged that the TCAB made a lot of errors in paragraphs 83 to 90 of the TCAB Decision. He said his case was genuine and a “FIR” had been submitted to the TCAB, yet the TCAB still rejected his claim. He further said his enemy would kill or seriously injure him should he return to Pakistan (his home country), and the Pakistani police would catch and make a fake “FIR” against him because of the power of the “PMLN” party members. In the oral hearing before me, the Applicant said he has nothing to add in support of the leave application.

4.  The Applicant claimed to be an active member of a political party in Pakistan called “PPP” and that he would be subject to the risk of ill-treatment by several figures associated with the opposing “PMLN”. The TCAB conducted a hearing to inquire into the facts of the Applicant’s claim. The TCAB stated the applicable legal principles in the TCAB Decision and set out the Applicant’s case comprehensively. The TCAB accepted the Applicant’s claim for being a supporter of “PPP”, but had difficulty with his assertion that he had been in conflict with the several “PMLN” figures named by him. The TCAB bore in mind principles under the Immigration Ordinance and the Petition Guide in relation to finding of credibility, as well as other common law principles concerning high standard of fairness. However, the inconsistency the Applicant had in describing the various events related to his claim was significant, and it caused the TCAB to make a negative credibility finding against the Applicant.

5.  As to the “FIR” (meaning First Information Report) mentioned by the Applicant, the TCAB did not accept that it had been filed at a police station in Pakistan by supporters of the “PMLN” because of the internal inconsistency and inherent improbability in the Applicant’s assertions as to how it was filed. The TCAB further rejected the Applicant’s assertion that his name had appeared in a list of persons wanted by the Pakistani authorities or that his family members had been tortured to obtain his location. By reason of the factual findings reached, the TCAB assessed that the Applicant did not have any real risk of being subject to risks of torture, persecution and/or violation of his rights under the Hong Kong Bill of Rights.

6.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision. The TCAB had considered the “FIR” submitted by the Applicant but was entitled not to give any weight on it in view of its factual finding that it had not been filed by the alleged “PMLN” supporters. These findings were within the TCAB’s discretion and supported by evidence.

7.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). The leave application is accordingly 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