AHMED TEHSEEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1660/2020

[2025] HKCFI 5434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1660 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.  Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 July 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 16 January 2020.

2.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same. He further handed up a document. The Applicant submitted that the document, together with other documents exhibited to his affirmation in support (all of which I have duly considered), showed that his life remained under threat.

Background

4.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed by the family of a girl that he developed a romantic relationship with. The girl’s family disapproved of their relationship because of religious and political differences. One day in 2017 the girl’s father and 2 brothers saw the Applicant and the girl together on their way to college. They fired at the Applicant but shot the girl instead (and she died from it). The Applicant managed to escape. The girl’s family has then been looking for the Applicant notwithstanding that he had tried to move to different cities. The Applicant’s personal background and the relevant facts have been fully set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. Rather, as an exhibit to his supporting affirmation, he listed out 4 grounds to challenge the TCAB Decision, and in summary they are as follows:

(1)  The TCAB failed to consider the substantive merits of the claim especially where a high standard of fairness was required;

(2)  The TCAB Decision was reached in a way that was procedurally unfair;

(3)  The TCAB Decision was unfair as the TCAB failed to make sufficient inquiries and failed to consider the real situation in Pakistan;

(4)  The TCAB Decision was Wednesbury unreasonable and the TCAB should consider whether state protection was “in fact” provided to the Applicant (as opposed to whether it “would be able to” provide).

9.  Pausing here, in the same exhibit the Applicant also listed out certain challenges against the DOI’s decision. These matters are irrelevant as the present application is plainly against the TCAB Decision and not against the DOI’s decision.

10.  As can be seen from the TCAB Decision, the TCAB took into account the Applicant’s case [1-5, 16-32] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [6-15] and considering Country of Origin information [40], the Applicant’s allegations were insufficient to make out any of the applicable grounds [33-41, 42-43, 44, 45-46]. Ultimately, the TCAB concluded that the treatment received by the Applicant (i) was not within the legal definition of “torture” or “persecution” [38, 41, 46], (ii) did not come within the kind of ill-treatment contemplated under Article 3 of the Hong Kong Bill of Rights Ordinance and was not serious enough [42-43], and (iii) did not come under Article 2 [44]. These were conclusions that the TCAB was fully entitled to reach.

11.  I further note that the TCAB held that internal relocation was available on the evidence [48-53].

12.  As to the grounds advanced by the Applicant in his exhibit to the supporting affirmation, I find that they are all unsubstantiated. The TCAB fully looked into the Applicant’s claims under all applicable grounds in accordance with the legal principles, and I am unable to detect any procedural unfairness throughout. State protection was not considered in great detail by the TCAB [40] because the Applicant never reported his trouble to the local police in the first place [39]. Therefore the distinction between what was “in fact” provided and what the state “would be able to” provide never became relevant in the first place. In any case it would have made no difference to the end result given the TCAB’s conclusion that internal relocation was available.

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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