KHAN MANZAR ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party; 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 22 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 22 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision which describes itself as one of the Torture Claims Appeal Board (“TCAB”)/Non‑Refoulement Claims Petition Office (“NRCPO”) made on 19 May 2020 (“the BOR Decision”)[1], of which only pages 1, 2, and 4 were included within the exhibit to the Affirmation, with only page 1 thereof retaining its original page number.

2.  I will use the abbreviations and definitions from the BOR Decision and the USM 1488 Decision (defined below) unless otherwise specified herein.  

3.  The Applicant sought an oral hearing of his application, which took place and which he attended on 21 August 2025.  As I will set out below, he made some submissions and asked to be allowed to submit evidence in support of his claim, but failed to do so by the deadline I gave him, or at all.

4.  I have amended the Form 86 of my own motion to reflect the identity of the Putative Interested Party.

Background

5.  This is set out in the BOR Decision and in the USM 1488 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 the Taliban or by one Shafqat;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 31 March 2015 (“Director’s 1^st Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO.  The latter determined after a hearing that the Applicant’s claim for non-refoulment protection failed, rejected his appeal/petition, and confirmed the Director’s 1^st Decision in a decision dated 19 May 2020 (“USM 1488 Decision”)[5].  No further steps were or have been taken by the Applicant in relation to the USM 1488 Decision;

(4)   The Director by a letter dated 27 March 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. As no such submissions were received by the deadline (or indeed, up to 21 April 2017) the Director in a decision dated 21 April 2017 (“the Director’s Further Decision”) found that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim; and

(5)   The Applicant then filed an appeal/petition for relief against the Director’s Further Decision.  The petition was dealt with by the same adjudicator who had earlier issued the USM 1488 Decision.  He issued the BOR Decision dated 19 May 2020, in which he held that the Applicant had not made out a case of BOR 2 Risk, rejected the appeal/petition, and confirmed the Director’s Further Decision.  

Legal Principles

6.  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).

7.  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).

8.  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

9.  The Form 86 and the Affirmation do not identify any grounds of judicial review, as they do not advance any 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 NRCPO Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the BOR Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The decision-maker set out the Applicant’s procedural history, including the background leading up to and the making of the USM 1488 Decision (which was annexed to, and which was also clearly considered in the process of reaching, the BOR Decision), the Applicant’s failure to submit further facts in relation to BOR 2 Risk to the Director, and the contents of the Applicant’s Notice of Appeal and case on appeal.  He had regard to the high standard of fairness and decided that there was no need to hold a hearing since no issues needed clarification, outlined the contents of BOR 2, observed that the Applicant’s case repeated the matters that had been ventilated and determined in the USM 1488 Decision, and referred to relevant paragraphs thereof which had determined that claim.  He accordingly found that the Applicant’s case was not relevant to BOR 2(2) to 2(6), and that the Applicant had failed to establish a real and personal risk of being arbitrarily deprived of his life (in violation of BOR 2(1)) if he were refouled to Pakistan.  The appeal/petition was accordingly dismissed, and the Director’s Further Decision was confirmed.  

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 BOR Decision, and that justifies the grant of leave.  The decision-maker’s findings in the USM 1488 Decision as to the Applicant’s evidence, credibility, risk of harm, and that the Applicant had hence failed to establish BOR 3 Risk, were clearly determinative of the Applicant’s claim against BOR 2 Risk (see Kulwinder Kaur [2022] HKCA 49 at §§58-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

13.  At the hearing before me, the Applicant claimed that he wanted to submit a letter which he said would give more details of the danger he faced, as he claimed his house had been destroyed by his enemy, and even his brother had taken their side.  He said such events had taken place around 5 to 6 years ago, but that he could not even remember the relevant month and year in question.  However, he failed to file any documentation[7] or submissions[8] by 18 September 2025, being the deadline I gave him at the hearing.  Moreover, and in any event, I do not see how such bare allegations made by him at the hearing are in any way relevant to the leave application, given that judicial review is not a further avenue of appeal and also that the Court of Appeal has, since the hearing, clarified in Chidomere Christian Okechukwu v TCAB [2025] HKCA 694 that the test in Ladd v Marshall [1954] 1 WLR 1489 is inapplicable.

14.  There is hence no basis for the court to intervene by way of judicial review, and I am 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