HUSSAIN AAMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1419/2020

[2025] HKCFI 5516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1419 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 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

2.   The 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 filed on 8 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 8 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 26 June 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought but did not attend the oral hearing of his application as scheduled on 20 August 2025.  I have therefore dealt with his application on the papers.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent and the proper Putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by members of the PML(N) as he had been mistakenly believed to have been involved in a fight between their supporters, and PTI supporters;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 25 May 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 19 May 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 26 June 2020, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  The Form 86 does not identify any grounds of judicial review.  Rather, the Applicant asserts in his Affirmation:

(1)  That the TCAB Decision was “unreasonable”, “not given fairly”, was “erroneously arrived at”, claiming apparently that the decision-maker had “not taken into account that my life and limb are in grave danger if I am sent back to Pakistan”; (Complaint 1) and

(2)  That “in the interest of justice and in all fairness” he be given a chance to “plead my case” and prays that his case be heard and a decision “should be made with the proper application of the mind”.  (Complaint 2)

9.  However, none of these allegations amount to grounds of judicial review as:

(1)  Complaint 1 merely consists of 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 the Applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; 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 [2021] HKCA 1616 at §15); and

(2)  Complaint 2 appears to be an attempt to re-argue the merits of his case, and is hence misconceived as the role of the Court in a judicial review is not to provide a further avenue of appeal, and as judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh even in the absence of any legal error (Lakhwinder Singh, supra).

10.  Nevertheless, 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 both of the Complaints made in the Affirmation.

11.  The TCAB/NRCPO set out the Applicant’s background, his immigration and procedural history, and the material in the hearing bundle that was taken into account, before it moved on to the law and relevant principles relating to each of the four types of risk (Paragraphs 1 to 31).

12.  The TCAB/NRCPO then outlined the Applicant’s claim and how it had considered and analysed it, with attendant conclusions.  It was satisfied that the Applicant was a dishonest and unreliable witness upon whose evidence, and upon the documents produced by him, no reliance could be placed, and gave salient reasons for such conclusions.  It found in particular that the alleged copy FIR of 16 September 2013 had been fabricated to support the Applicant’s dishonest claim, and did not attach any weight whatsoever to the Applicant’s allegations and to the other alleged photocopy FIR dated 25 May 2015.  It was not satisfied that the Applicant had established, even to the low standard required, that there was a real chance, danger, or substantial grounds for believing that he would suffer any harm warranting non-refoulement protection if he were returned to Pakistan.  It hence found that the Applicant had failed to establish any of the relevant types of risk, dismissed the appeal, and confirmed the Director’s Decision (Paragraphs 32 to 67).

13.  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 that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm, which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, including in terms of or arising in relation to Complaints 1 or 2.

Conclusion

15.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review 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