SUBHANI SYED YASIR v. NON-REFOULEMENT CLAIMS PETITION OFFICE / TORTURE CLAIMS APPEAL BOARD

HCAL 1297/2020

[2025] HKCFI 4427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1297 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 the Applicant being absent in open court;

1.   The Form 86 be amended on the Court’s own motion to name only the Director of Immigration as the Putative Interested Party.

2.   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 dated and filed on 24 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 24 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 12 June 2020 (“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. However, he did not appear at the scheduled hearing on 13 August 2025. I have hence dealt with his application on the papers.

Background

3.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by PML(N) supporters;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4] and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 11 October 2018 (“Director’s Decision”);

c.  The Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 24 April 2020; and

d.  The TCAB/NRCPO issued the TCAB Decision on 24 June 2020 in which it found that the Applicant had failed to establish any of the grounds for non-refoulement relief, rejected 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 several handwritten grounds for judicial review (collectively, “Grounds”) which have all been copied almost word for word from other cases. I set them out below, although as they were handwritten entirely in uppercase I have formatted them in the interests of readability:

a.  “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my non‑refoulement Claims.  I believe 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.” (Ground 1)

b.  “From the Director’s Decision, it is evident that the Director has failed to appreciate or give the proper importance or weightage to the presence of state acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the best and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failings to provide reasonable protection for its citizens under the duty of due diligence”. (Ground 2)

c.  “The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account.  Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect.  The Director failed to consider or give enough weightage to those evidence and ruled otherwise.” (Ground 3)

d.   “I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in my country is still a very serious problem.  Various human rights organization has compiled reports on the matter which stated testament to my assertions.” (Ground 4)

e.  “Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above.  As such, the decision of the director should be considered unreasonable in the scope of Public Law.” (Ground 5)

f.  “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response.  The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.” (Ground 6)

g.   “The Adjudicator made a ruling to dismiss my appeal/petition in the [TCAB/NRCPO] based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.” (Ground 7)

8.  However, once the Applicant had pursued his appeal 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).

9.  The Grounds or portions thereof that relate to the Director and/or the Director’s Decision are hence not reasonably arguable and must be dismissed. Consequently Grounds 2, 4, and 5 must be dismissed, and when considering the other Grounds I shall ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed.

10.  Furthermore, the Grounds or portions thereof are entirely inadequate as they are merely 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 §17; 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, supra, at §15).

11.  However, 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 the alleged ground mentioned in the Form 86.

12.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 9), the four types of risk and relevant principles (Paragraphs 10 to 19), the Applicant’s case (Paragraphs 20 to 32), and its views and conclusions as to the Applicant’s evidence (Paragraphs 33 to 65). In the latter section it inter alia found his evidence “manifestly unreliable”, that it was not convinced he would be harmed, ill-treated, or killed by PML(N) supporters if refouled and rather that such claim was not substantiated, that the Applicant had no cogent reason for hiding in various places and fleeing his country, and that the Applicant was not really scared of the PML(N) supporters. The decision-maker also rejected the Applicant’s claim that the Pakistani police had sided with PML(N), his account of being harassed and threatened by the PML(N) supporters in other locations, and found (with regard to relevant COI) that state protection was available if he were to seek such, and that internal relocation was available and open to him away from his village. The TCAB/NRCPO also concluded that the Applicant’s claim and evidence given in relation to his fear were “based entirely on [the Applicant’s] speculation.”

13.  The decision-maker went on to assess each of the four relevant types of risk with regard to relevant elements thereof, and found in relation to each of them that they were not made out. The Applicant’s claim for non-refoulement relief hence failed under the USM and the Director’s Decision was confirmed. (Paragraphs 66 to 84).

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 justify the grant of leave.  Indeed, I see no public law error (let alone one that justifies vitiation of the TCAB Decision) in relation to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm, state protection, internal relocation (which are all matters primarily within the province of the decision‑maker), and as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. Further, and in particular:

a.  As to the remnants of Ground 1, I see no Wednesbury unreasonableness or irrationality in the TCAB Decision, including in its assessment of and conclusions as to BOR 2 Risk;

b.   The Applicant has failed to identify the specific facts and matters relevant to the alleged public law errors contained within what remains of Grounds 3 and 6, or relevant to the alleged irrationality as alleged in Ground 7.  In any event I see no such procedural unfairness or irrationality as alleged, let alone findings on which the decision-maker ought to have allowed the appeal/petition, or any unreasonable/unfair procedure and/or error of law that tainted any relevant findings and/or rendered any conclusions irrational.  Indeed I see no reasonably arguable public law basis for faulting the process or the conclusions, and it is clear from the TCAB Decision that the Applicant’s personal background, experience, and explanations were fairly considered and evaluated by the decision-maker, who gave salient reasons for findings that logically supported and led to the dismissal of the appeal/petition.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am 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 ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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