ABBAS ARSHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 525/2021

[2025] HKCFI 6033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 525 of 2021

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 the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming the Torture Claims Appeal Board as the Putative Respondent and only 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 dated 14 April 2021 (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 25 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 10 September 2018.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked whether he had anything to add, he said that he had diabetes for 20 years and because of this, he was unable to see (and was escorted to the hearing by a friend). He needed to have medical checks regularly. Relevantly, he stated that he was in fact willing to go back to Pakistan, but requested that he could stay until completion of the treatment. When asked how long the treatment would take, he said that it would probably take a long time, much depending on the doctor.

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

Background

4.  The Applicant claims no right of abode in any other country than Pakistan. The Applicant’s life is said to be in danger for a combination of reasons including religious bigotry, from neighbours who coveted his land and their extremist Sunni associates. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

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. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would 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 state any substantive grounds on which the relief is sought, but stated that, “…I was unable to sub supporting [sic] documents, but truly I have problem by enemies against my (shia sects) I trying my best to obtain my documents”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds[2] under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [71-73]. In particular, the TCAB found, in substance, that the applicant’s case was inherently improbable [47,48] and lacked supporting evidence or details of his claims, as to which the Applicant refused to give further clarification [49-54, 68], that he gave contradictory evidence [56], and that he would receive state production and could viably relocate, just as his wife did [57-67]. As regards his assertion that he had tried his best to provide supporting documents, not only that this point was specifically, and in my view, correctly, rejected by the TCAB, as stated above, but also that, in reality, it would not have helped the Applicant’s case in view of the various other cogent reasons for rejecting his appeal below.

10.  I have also carefully considered the Applicant’s oral submissions. I note that his oral submissions in fact show that he did not fear that he would be harmed when returning to his home country (as the TCAB so found). Further, it is not his case, and there is no evidence to the effect, that his diabetes and eye condition cannot be treated in his home country.

11.  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