BUTT KHALID JAVED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3869/2019

[2025] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3869 of 2019

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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 27 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) with reference no. USM 6490/17/3/145/P1379. He named the TCAB as the proposed respondent and stated “only me as applicant” in the interested party section.

2.  From the papers filed for this application, there was a decision by the TCAB dated 30 August 2018 (the “TCAB Decision”) which affirmed the decision of the Director of Immigration (the “DOI”) dated 1 March 2017 refusing the Applicant’s non-refoulement protection claim.

3.  I amended the Form 86 on my own motion to name the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same.

Background

5.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he will be harmed by people of opposing political affiliation if he is returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case 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. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant only stated that he was not satisfied with the TCAB decision and his life was still in danger in his country. He did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB [9-29], the TCAB carefully considered the same before coming to the conclusion that the allegations were not made out [30-39].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles, and came to the conclusion that none was made out [40-59].

10.  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.

11.  At the hearing the Applicant told me that the problem with his country remains and it is still lawless. He said that a few days ago 6 people were killed in the area so it was still not safe. However, there was no further particulars or evidence to show either the relevance of this to his application or the how reliable/credible the information is. I therefore fail to see how this could affect my view above.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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