ASHIQ ARSHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 782/2021

[2026] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 782 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 the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the putative respondent and only the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 27 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 29 May 2018.

2.  I amend the Form 86 on my own motion, naming only the TCAB as the putative respondent and only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application. He was absent. I see no irregularity in the notification process.

Background

4.  The Applicant is a national of Pakistan. In gist, his case is based on his claim that he will be ill-treated or even killed by the people of Shiya, a Muslim religious group and the PML(N) if he were refouled to Pakistan, as he had joined the EHL. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  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], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant’s affirmation, he sets out some purported grounds on which the relief is sought. However, those grounds are either vague and generic, or concern factual matters which have either been fully considered by the TCAB or are irrelevant. In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds[2] under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [117-132]. The Applicant failed to support his key allegations. E.g. he did not even know the ideology of EHL [68]. His evidence was also inherently improbable e.g. [71-74, 79-95]. It is not surprising that the TCAB was not persuaded by the Applicant’s claim that his alleged objection to Shiya’s recruitment had given rise to his fear of being harmed or killed by the Shiya and PML(N) people [69] and that he was found to be an incredible and unreliable witness, and had “lied through his teeth” [94]. Having considered various material, including the country of origin information, the TCAB, correctly in my view, came to the conclusion that state protection was also available to the Applicant [96-108], and internal relocation was viable [109-115]. In view of the above findings, the Applicant’s appeal below was bound to fail.

10.  The Applicant’s grounds of appeal, in gist, are as follows:

(1)  It is alleged that he should be allowed to appeal “all decisions” out of time – this presumably concerns the rejection of his torture claim by the 6 July 2012 decision of the DOI (grounds 5-8). But this is a non‑starter: in view of the factual findings, his torture claim was also bound to fail;

(2)  He complained of the lack of legal representation or language assistance (grounds 8-17). The high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings. (Re  Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17). The high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly when it was his choice to overstay in Hong Kong, where the official languages are Chinese and English. In any event, the Applicant’s Form 86 and his affirmation were all in English. He thus has access to, and would have been able to seek, interpretation services and language assistance if necessary (Gurnishan Singh, supra; Gurung Sagar, supra; Kamran Khan, supra; Zafar Muazam, supra).[3]

11.  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. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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