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

HCAL 1404/2021

[2026] HKCFI 2342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1404 of 2021

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; and (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 7 October 2021 (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”) dated 29 September 2021 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 20 August 2020 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal 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 Decision, the application fails in limine and is dismissed.

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

4.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 12 January 2026 and the Applicant attended in person.  At the hearing, the Applicant indicated that he has been receiving medical treatment in Hong Kong.  He said he has a brain tumor and heart problem.  He said he had operation last year, and will have medical appointment in late 2026 and MRI in 2027.  He said he was advised by his doctor not to travel by public transport.  Apart from the aforesaid, the Applicant indicated that he had nothing to say in respect of the Leave Application.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  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)

7.  The Applicant provided a number of grounds in support of the Leave Application in the Form.  In the supporting Affirmation, apart from attaching the Board’s Decision and the Director’s Decision, the Applicant provided his background information and a summary of his case.  The grounds relied upon by the Applicant can generally be summarized as follows: -

(1)   The Director and the Board had wrongly assessed his claims.  The Board’s Decision and the Director’s Decision were not reasonable and fair (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”).  He further claimed that the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings.

(2)   The Director 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 Board had acted unreasonably and was “procedurally unfair” by placing too much reliance on COI but had failed to take into account the Applicant’s personal background and experience. 

(4)   The Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(5)   The Board was “procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by [the Applicant]”, and had unreasonably required the Applicant to respond to questions that he was not in a position to respond. 

(6)   The Board had failed to take into account the nexus of political parties and official corruption which exists in the Applicant’s country, making the persecution effectively persecution by the state.

(7)   The Director had failed to take such argument into account or that the Director had failed to give enough weight to such argument before reaching the decision.

(8)   The Director showed an unfair attitude towards the Applicant or 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 matters which support the Applicant’s assertions.

(9)   The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

(10)  The Board’s Decision and the Director’s Decision were irrational.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.  In so far as the Applicant’s complaints are made against the Director, I refer to my ruling in §2 above.  I shall further consider such complaints as if the complaints were made against the Board as well. 

9.  In relation to point (1) above, the Board had cited the correct legal principles under Article 2 of the HKBORO (§81 of the Board’s Decision).  There is nothing to indicate that the Board had applied any incorrect legal principles.  The Applicant’s contention that the Board had wrongly assessed his claims, and that the decision was not reasonable and fair, is no more than bare and general assertion without particulars in support. 

10.  In relation to Point (2) above, it should be noted that the Board had found the Applicant not to be a truthful or credible witness (§48 of the Board’s Decision).  The Board further held that the Applicant was willing to fabricate evidence in support of his claims (§48 of the Board’s Decision).  As the Applicant had not provided a single piece of credible, independent and corroborating evidence in support of his claims, the Board ultimately rejected the claims (§§51-57 of the Board’s Decision).  I see no errors in the Board’s reasoning.  In any event, there is no evidence showing that the state or any public officials were involved in the alleged attack or threat by the Pakistan Tehreek-e-Insaf Party (or in particular Mr Afzal, Mr Safdar and Mr Tariq Deen). Accordingly, I also reject this ground. 

11.  In respect of Point (3) above, the Applicant has completely failed to demonstrate how the Board had allegedly acted unreasonably or in a procedurally unfair way.  The Applicant has equally failed to identify precisely which COI materials the Board had allegedly placed too much reliance on and why.  He has also failed to explain what personal background and experience of him he considered to be relevant which the Board had failed to take into account. 

12.  In respect of point (4) above, the Applicant has failed to identify the precise evidence which he claimed the Board had failed to consider or give enough weight.  It should be noted that the Board did not accept, based on the evidence, that the Applicant had attempted to report the purported assault to the police, or that the police had failed to conduct a proper investigation as claimed (§54 of the Board’s Decision).  I see no error in the Board’s finding in this regard.

13.  Point (5) above is equally unmeritorious.  There is no explanation as to why the Applicant claims that the Board was unfair or procedurally improper.  I have considered the Board’s Decision in detail.  The Board was entitled to make the findings based on the evidence and the reasons provided.  The Board was entitled to reject the Applicant’s evidence, and the Board had explained comprehensively why it did so (§§46-57 of the Board’s Decision).  It is also unclear what questions the Board had asked the Applicant which the Applicant considered to be unreasonable or unfair. 

14.  In respect of Point (6) above, the Applicant has failed to explain precisely what “nexus of the political parties and official corruption” the Board had allegedly failed to take into account and its relevance.     

15.  In relation to point (7) above, the Applicant has failed to identify precisely what argument(s) he alleged the Board had failed to give sufficient weight.

16.  In relation to point (8) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him.  The alleged corruption and incompetence of the administration in Pakistan is not relevant given the Board’s findings that the Applicant will not face a real risk of serious or fatal harm if he is sent back to Pakistan (§57 of the Board’s Decision).

17.  Point (9) above is a general assertion without particulars in support. The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

18.  Point (10) above is again a general assertion without particulars in support. 

19.  In relation to the background and summary provided by the Applicant in the supporting Affirmation, it is simply a repeat of the Applicant’s claims. The Board had duly considered the same in the Board’s Decision.  I see no errors in the Board’s findings and the reasoning provided.

20.  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 was entitled to reject the Applicant’s claims based on the reasons provided (§§46-57 of the Board’s Decision).   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.

21.  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.

22.  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

23.  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