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

HCAL 3739/2019

[2025] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3739 of 2019

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 Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 5 December 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) 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, I make an order to amend the same accordingly on the court’s own motion.

3.  The Applicant had requested for an oral hearing for the application. The hearing took place on 11 March 2025. The Applicant attended in person. The Applicant however indicated that he had no further submissions to make, apart from those stated in the Form and in the supporting Affirmation.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.  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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form, the Applicant alleged that the Board’s Decision was wrong and unfair. He said the Board refused his case without any valid reason. He said he was tortured many times and his family was still in trouble in Pakistan. In the supporting Affirmation, the Applicant said he would be killed if he was to return to Pakistan. He also criticized the Board’s Decision on relocation. Last but not least, he challenged the Board’s view that “Sunni” and “Deobandi” are the same.

7.  I have considered the Board’s Decision in details. 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. In so far as the Applicant claimed that the Board did not provide reasons for the refusal, this is plainly incorrect. The Board’s Decision was comprehensive with adequate reasons provided.

8.  In respect of the alleged “torture” incidents, the Board had clearly considered such evidence but rejected it for the reasons explained (see paragraphs 52 to 53 of the Board’s Decision).

9.  The Applicant’s criticism on the Board’s Decision on relocation is also misconceived. The Board did not find it necessary to address the question of relocation, as it had already found that there is no real risk of harm if the Applicant returns to Pakistan (see paragraph 71 of the Board’s Decision).

10.  In relation to the criticism that the Board treated “Sunni” as the same as “Deobandi”, it should be noted that the Board did not say the two are the same. The Board referred to some COI materials which indicated that the Deobandi was a strand of Sunni Islam belief, rather than a religious organization or party, and that it was Sunni, not Shia (see paragraph 48 of the Decision). The Applicant has adduced no evidence to contradict such COI materials. The Applicant also admitted that he knew nothing about Deobandi (see paragraph 49 of the Board’s Decision). There is nothing wrong with the Board’s observation in this regard.

11.  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 and the Leave Application is hereby dismissed.

12.  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

13.  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