TAYYAB TALHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1491/2020

[2025] HKCFI 5638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1491 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;

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 15 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 15 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 10 July 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application. He attended that which was scheduled on 21 August 2025, and said that he had nothing to say in addition to the matters set out in the papers.

Background

3.  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 Asif and Afaq, brothers of his former girlfriend Sareen, and that he is afraid that the Pakistani police who had previously accused him of theft would harm or ill-treat him;

(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 1 April 2020 (“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 2 July 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 10 July 2020, in which it held that none of the types of risk had been established, dismissed the appeal/petition, and confirmed the Director’s Decision.

Legal Principles

4.  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).

5.  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).

6.  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

7.  The Form 86 contains a single ground of judicial review which has been copied almost word for word from other cases, namely:

“I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non‑refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”

8.  However, given the appeal/petition to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18). The portion of such that that relates to the Director and the Director’s Decision is hence not reasonably arguable and must be dismissed.

9.  Moreover, what remains of the ground is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

10.  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, as well as what remains of the alleged ground.

11.  The TCAB/NRCPO outlined the Applicant’s procedural history, the thrust of his claim, general background, the facts relied on him in relation to his non-refoulement claim, his immigration history, and his grounds of appeal (Paragraphs 1 to 18). This was followed by four grounds and relevant principles, including as to the standard of proof (Paragraphs 19 to 33).

12.  The decision-maker then detailed the Applicant’s evidence, including what he had stated at the oral hearing, and explained that there were conflicting issues that indicated the Applicant’s claim was unrealistic, there were serious doubts as to his credibility, the alleged risks were implausible, and the Applicant would not face harm upon being refouled to Pakistan. The TCAB/NRCPO hence did not accept that there was truth in (and rejected) the Applicant’s account of events (Paragraphs 34 to 37, see also Paragraph 46 to 47).

13.  There was then reference to COI followed by assessment of each of the four grounds of risk, as well as an outline of findings (with regard to relevant COI) that there were sufficient safeguards by the state in case the Applicant required assistance, and (with regard to COI and the Applicant’s own evidence that he had stayed in Gujrat City and Islamabad for 1.5 years without incident before departing to China) that internal relocation to large cities such as Islamabad, Rawalpindi, Lahore, or Karachi was a feasible option. As to each of the four grounds, Torture Risk was rejected even on the Applicant’s own allegations, with reference to the nature of the past injuries, the low risk of harm, the lack of state involvement, and the unlikelihood of state acquiescence. The claim for protection based on BOR 3 Risk was rejected given the TCAB/NRCPO’s rejection of the Applicant’s account of events, and as even if such were to be accepted, there was no real risk of harm, and internal relocation was feasible. The decision-maker also found that on the evidence, the Applicant had failed to establish BOR 2 Risk. The same went for Persecution Risk as even on the Applicant’s own version of events there was an extremely low risk of harm and internal relocation was feasible. The appeal/petition was hence dismissed and the Director’s Decision was confirmed (Paragraphs 38 to 62).

14.  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 credibility, evidence, risk of harm, state protection, and internal relocation, which are matters primarily within the province of the decision-making body. Nor is there any reasonably arguable public law basis to vitiate the decision-maker’s conclusions or to justify the grant of leave in relation to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

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

Conclusion

16.  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