WAHEED FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 719/2020

[2025] HKCFI 4077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 719 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 Applicant’s Form 86 be amended to name the Board as the only putative respondent and the DI as the only putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 21 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 8 April 2020 (“the Board’s Decision”). A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 21 December 2018 (“DI’s Decision”). The Form 86 has identified both the Board and the DI as putative respondents and putative interested parties. This is incorrect as it is trite that the DI’s Decision has been superseded by the Board’s Decision after the latter’s making. Only the Board should be named as putative respondent. I therefore amended the Form 86 on my own motion as per paragraph 1 of my order above.

3.  The Applicant was absent from the oral hearing of this leave application. I proceed to deal with the leave application based on the materials placed before me.

4.  The Applicant is a Pakistani national. He claimed that he was a security guard of an Air Force and kidnapped by terrorists for security information. After an oral hearing, the Board came to the finding that the Applicant’s claim was not credible; he was also found to have a reasonable internal relocation alternative even if his claim was true.

5.  In his Form 86 and supporting affirmation, the Applicant did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the administrative decision-maker but not the Court. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

6.  I have reviewed the Board’s Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus 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