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

HCAL 337/2023

[2026] HKCFI 5094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 337 of 2023

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 6 March 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 9 January 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 18 August 2021 in refusing the applicant’s non‑refoulement protection claim.

2.  The applicant requested for a hearing and he attended the same.

BACKGROUND

3.  The applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed by a group of terrorists known as the Pakistani Taliban (“the PT”). His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

4.  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 Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director 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 Board (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 & Anor (2007) 10 HKCFAR 676).

5.  In the affirmation filed in support of the present application, the applicant stated some rather vague and general “grounds for judicial review” which are more in the natural of complaints rather than the usual accepted grounds for judicial review. They included complaints that the Board did not consider his claim and “directly dismissed” them without taking time (to consider) or think about his life; documents which were in his mother language which the Board did not accept; that he was not given time to translate all the documents; and the translator / interpreter was not helpful.

6.  It has been held that 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]. He/she is also required to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  Besides the vague and general grounds stated above, the applicant has failed to provide any particulars as to the matters which the Board had allegedly failed to consider and what documents the Board refused to accept from him. At the hearing, the applicant failed to provide any further particulars save to say that the problems he faced still exist at home and it would still be dangerous for him to return home. He also mentioned a gunshot incident at home 3 months ago which obviously was not part of the facts / reasons relied on by him at the appeal before the Board.

8.  Looking at the Board’s Decision, it is clear that the Board had mainly relied on the documents submitted by the applicant to the Director for the screening interview, including the contents of the Non-refoulement Claim Form (“NCF”) and the Record of Interview to form the basis of its assessment. There is no suggestion that these were not relevant materials which the Board ought not to have taken into consideration. Nor is there any suggestion that they had not been properly translated or interpreted. On the other hand, the applicant was not able to say clearly what documents allegedly the Board had refused to accept and how they would become relevant in the consideration of his non-refoulement claim. In fact, it has been specifically recorded that the Board had gone through all the evidence contained in the Hearing Bundle with the applicant. The applicant confirmed that he would adopt them in their entirety. He had also been asked if he had anything to supplement a clarify and his answer was in the negative. The applicant further confirmed that he would rely on the same basis of claim and adopt the same materials previously submitted to the Director. In the circumstances, I do not see how he can now make the complaints about the translation and interpretation.

9.  As can be seen from the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM. It has carefully taken into consideration of the applicant’s case and evidence, including the evidence he gave at the hearing and the relevant COI.

10.  After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out.

11.  Having looked at the Board’s Decision carefully, I am not able to find the Board has failed to consider any of the matters raised by the applicant in his claims and/or failed to provide any adequate reason in its decision.

12.  Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. In my view, the applicant’s intended challenge to the Board’s Decision is not reasonably arguable and has no realistic prospect of success.

CONCLUSION

13.  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