ASGHAR SHAH ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1377/2020

[2025] HKCFI 5513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1377 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 Form 86 is amended on the Court’s own motion, adding “/” immediately after the words “Torture Claims Appeal Board”, naming only the Director of Immigration as the Putative Interested Party, and adding “/Non-Refoulement Claims Petition Office” after the words “AGAINST TCAB”; 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 3 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 3 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 24 June 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application on 20 August 2025.  He said that he was married in Hong Kong with a son, his wife was pregnant again, he was waiting for his dependant visa to be processed, and that he wished to proceed with his application for leave.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party, as well as the nature of the TCAB Decision.

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 Deobandi people, who are Sunni Muslims;

(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 of Immigration (“Director”) in a decision dated 6 August 2018 (“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 24 April 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 24 June 2020, in which it found that the Applicant’s appeal/petition failed on all applicable grounds, 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.  Insofar as he asserts in the Affirmation that he is “not satisfied with” the TCAB Decision, that does not amount to a ground of judicial review given that such fails to identify any public law error, much less one supported with requisite reference to underlying particulars (Re: Haider Khalil [2021] HKCA 223 at §16 citing inter alia Re: Mizan Sikder [2019] HKCA 20).  Nor does the bare and unsupported claim that his “life is still in danger” in Pakistan amount to such, given the nature of judicial review proceedings.  There is hence no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand, 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.

10.  The TCAB/NRCPO set out the Applicant’s background, his immigration and procedural history including how it was handled below and before the TCAB/NRCPO, his evidence to the TCAB on salient topics, the Director’s case, and the issues and relevant principles to such.  It then explained, and gave reasons as to why, it attached no credence at all to the Applicant’s claims, and found that private individuals and not the state were the alleged actors of potential harm.  It also found that there was no evidence (even in the Applicant’s own statements) that he had been subjected to serious harm, and took the view that his treatment did not meet the minimum level of severity required for a finding of persecution.  It rejected as fanciful the Applicant’s claim that state protection was unavailable, and found that on the evidence internal relocation was also possible (Paragraphs 1 to 27).

11.  The TCAB/NRCPO then went on to find, with regard to relevant principles and its aforementioned findings, that the Applicant had failed to establish each of the relevant types of risk.  As regards Torture Risk it also had regard to the lack of consent or acquiescence of a public official or person acting in an official capacity, as well as of any claim or evidence that there was a consistent pattern of gloss, flagrant, or mass violations of human rights in Pakistan.  The appeal accordingly failed and the Director’s Decision was confirmed (Paragraphs 28 to 42).

12.  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 that justifies the grant of leave.  This is especially so as to the 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.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

13.  I also do not see how the Applicant’s marriage and family circumstances and his application for a dependant visa are relevant, or constitute valid grounds in relation, to his own non-refoulement claim (Oguzie Ikechukwu Charles [2022] HKCA 135 at §20; Adeel Muhammad [2023] HKCA 948 at §§5, 7).

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

Conclusion

15.  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