AFTAB AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3749/2019

[2025] HKCFI 1468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3749 of 2019

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 documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”); and (2) the decision of the Director of Immigration (the “Director”).

2.  There were two decisions issued by the Board (one dated 7 April 2017 and the other dated 21 November 2019). There were equally two decisions issued by the Director (one dated 29 January 2015 and the other dated 17 October 2017). The Applicant did not state the dates of the decisions he wished to apply for judicial review in the Form. At the hearing on 11 March 2025, I tried to clarify with the Applicant the dates of the decisions in respect of which he wished to apply for judicial review. The Applicant simply said he did not know.

3.  As the time to apply for judicial review for the Board’s decision dated 7 April 2017 had long expired, and there is no application for extension of time, I take it that it should be the decision dated 21 November 2019 (the “Board’s Decision”) which the Applicant wanted to apply for judicial review. This is also supported by the fact that only the Board’s decision dated 21 November 2019 was exhibited to the Applicant’s supporting Affirmation (but not the one dated 7 April 2017).

4.  The Director’s decisions had already been superseded by the Board’s subsequent decisions. The Director’s decisions are not decisions susceptible to judicial review once appeals to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s decisions, the applications fail in limine.

5.  In the Form, the Applicant has named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents. The Applicant has not named any interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

6.  The Applicant had requested an oral hearing for the application. The hearing took place on 11 March 2025. The Applicant attended in person. Apart from what I have stated above, the Applicant indicated that he had no submissions to make at the hearing.

Background

7.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s earlier decision dated 7 April 2017 (the “Board’s Earlier Decision”) and in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlinks to the Board’s Earlier Decision[1] and the Board’s Decision[2]are included below for reference.

Discussion

8.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

9.  In the Form, the Applicant did not state any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant made a number of allegations in support of the Leave Application which can generally be summarized as follows:-

(1)  The Board’s Decision was unreasonable and unfair (as required by the Wednesbury test). The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”). The Board had failed to give the Applicant sufficient time and chance to arrange relevant evidence in support of his case.

(2)  The Director (presumably the Applicant meant the Board) had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case. The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles. The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)  The Director (presumably the Applicant meant the Board) had failed to take into account or give enough weight to the Applicant’s argument. The Board had failed to give enough weight to the evidence which shows that the police in his country would not be able to protect him.

(4)  The Director (presumably the Applicant meant the Board) showed an unfair attitude towards the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had complied reports on the matter which support the Applicant’s assertions.

10.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.

11.  In relation to point (1) above, the allegation that the Board’s Decision was unreasonable and unfair is vague assertion without particulars or elaboration. The Applicant has not particularized, let alone demonstrated, how the Board had acted unfairly or unreasonably as alleged. It is important to note that the Applicant was specifically invited to submit any additional information on or before 10 May 2017 in support of his claims, including in relation to right to life under Article 2 of the HKBORO by the letter dated 26 April 2017 issued by the Immigration Department (§5 of the Board’s Decision). The Applicant failed to submit any further information. In the absence of any further information submitted by the Applicant, it is clear that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO including the right to life under Article 2 thereof in the light of the findings made in the Board’s Earlier Decision. There is no merits in the Applicant’s contention that he was not given a fair chance to adduce evidence. The Board was also entitled to reject the grounds put forward by the Applicant in the Notice of Appeal/Petition as speculation and not supported by facts or evidence (§15 of the Board’s Decision).

12.  Point (2) identified in paragraph 9 above is misconceived. The Board had already concluded that there was no risk to life (§§13 to 15 of the Board’s Decision). The Applicant has failed to explain why the Board should consider “state acquiescence” under such circumstances. It should be noted that the Board had already indicated that there was no evidence to show that the state was involved in the Board’s Earlier Decision (see §24 of the Board’s Earlier Decision).

13.  Point (3) identified in paragraph 9 above is equally misconceived. The Applicant has failed to identify precisely what argument he had advanced which the Board was alleged to have overlooked. In view of what had happened procedurally in this case, the Board was entitled to reach the conclusion it did given no further information was adduced by the Applicant as mentioned above.

14.  Finally, in relation to point (4) identified in paragraph 9 above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. As regards the problems in Pakistan, the Board had duly considered all the COI materials available in the Board’s Earlier Decision. As there were no new materials submitted, the Board did not need to set out its findings again. I note that the Board had set out the procedural history of the case in the Board’s Decision, including the fact that the Board had earlier rejected the Applicant’s appeal (§4 of the Board’s Decision).

15.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

16.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

17.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

18.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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