AMEEN BINIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 536/2020

[2025] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 536 of 2020

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.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 7 April 2020 (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 3 March 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant has named the adjudicator of the Board responsible for the Board’s Decision as the proposed respondent, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 12 May 2025 and the Applicant attended in person.  The Applicant however indicated that he had nothing to say at the hearing.

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[1] is included below 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 or 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 did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant said his life would still be in danger in his country.  He attached a document containing the “Grounds of Appeal”.  I have considered the grounds contained therein.  They can be broadly summarized as follows. 

7.  The Applicant claimed that the police in Pakistan is corrupted, and this is particularly so in Punjab.  He cited some reports in support although I note that the reports themselves were not exhibited.  I also do not know whether those reports were adduced before the Board.  The Applicant then referred to a number of organizations in Pakistan which purportedly tackled the issue of corruption in the police but he claimed that none of them was effective. First, he claimed that National Anticorruption Bureau in Pakistan is more involved in white collar crime and high-dollar cases, rather than individual complaints against police.  Second, he claimed that whilst Public Safety Commission was available to register complaints of citizens against police officers, it has been ineffective and even “non-functional” in some provinces since 2007.  The Applicant further claimed that corruption and lack of independence is a problem for the judiciary in Pakistan.  He relied on some reports (which were again not exhibited) and said there is a lack of rule of law, lack of due process, poor implementation and enforcement of laws in Pakistan.  Finally, the Applicant claimed that the Ombudsman institutions in Pakistan face significant weaknesses, including low capacity, resulting in an inability to meet performance standards, as well as insufficient human and technological resources to address complaints.  The Applicant concluded that based on the above, the true situation of all the departments in Pakistan is totally different from what is stated in the Board’s Decision.

8.  I do not consider the above assists the Applicant’s Leave Application.  The gist of the Applicant’s case was summarized by the Board in §33 of the Board’s Decision.  In short, the Applicant claimed that he will be seriously harmed or even killed by his enemies (i.e. Raja and the people from Pakstan Tehreek-e-Insaf (PTI)).  In the end, the Board found that Raja was not a real person, but rather a fictitious character (§§127 and 130 of the Board’s Decision).  The Board’s main finding can be found in §130 of the Board’s Decision, which is reproduced below for ease of reference:

“130. As noted above, I do not accept Raja to be a real, as opposed to fictitious character. I am not prepared to accept that the Appellant has an enemy in the form of a local PTI leader who is wealthy, influential and having wide connections. I do not accept that the 4th encounter has ever taken place. I do not accept that a PTI supporter was gunned down and killed during the 4th encounter. I do not accept that there was ever any police investigation into the killing of that PTI supporter. I do not accept that the PTI people/PTI have been trying to avenge for the killing of that PTI supporter by having the Appellant (as well as other PPP supporters present during the 4th encounter) caught and then inflict serious harm on them or to kill them. I do not accept that the Appellant had fled his home country for the reason that he was in fear of harm or danger posed by the PTI people or the PTI. I do not accept that the Appellant has ever been targeted for revenge killing by the PTI people or the PTI.”

9.  Based on such finding, it is clear that the Board did not regard that there would be risk of harm or torture.  Specifically, in respect of the “Risk of Persecution”, the Board noted that members and supporters were not state agents (§133 of the Board’s Decision).  In respect of “BOR 3 Risk”, the Board found that the mistreatments inflicted on the Applicant in the past did not amount to “torture, inhuman or degrading treatment or punishment”, and there was no real chance that the Applicant would suffer further harm by PTI people (§§140-141 of the Board’s Decision).  In respect of “Risk of Torture”, again, the Board found that the mistreatments inflicted on the Applicant before did not amount to “torture” of the Appellant (§145 of the Board’s Decision).  In respect of “BOR 2 Risk”, the Board found that there was no real chance that the Applicant would be killed by PTI people (§152 of the Board’s Decision).    Finally, the Board also considered internal relocation was an available option to the Applicant (§§155-162 of the Board’s Decision).  I see no errors in these Board’s findings.  Neither was the Applicant able to demonstrate any errors.  

10.  In the premises, even assuming what the Applicant asserted in the supporting Affirmation, which was not supported by any documentary evidence, was correct, the Board was still entitled to, and indeed correct in my view, to dismiss the Applicant’s claims.

11.  In respect of the availability of “state protection”, whilst this would not have affected the outcome of the Board’s decision as indicated above, I am of the view that the Board was entitled to find that state protection was indeed available based on the COI materials and the available evidence (§§97-128 of the Board’s Decision).  I see no error in the Board’s analysis.  I also consider it unsafe to rely on the Applicant’s bare assertions made in the supporting Affirmation.  Finally, it should be noted that in the Board’s Decision, the Board was only finding that there is a reasonable level of state protection available for the Applicant (§§118 and 136 of the Board’s Decision). 

12.  Having fully considered the Board’s Decision. 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.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.  In the premises, 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.

13.  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

14.  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