SEEMAB AZKA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1002/2020

[2026] HKCFI 4128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1002 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1. The title of the applicant’s Form 86 be amended on the court’s own motion as follows:

2^nd applicant: Khan Hareem Zainab, suing by her mother and next friend, Seemab Azka, the 1^st applicant

3^rd applicant: Khan Muhammad Husshain Abbas, suing by her mother and next friend, Seemab Azka, the 1^st applicant

2. The 1st, 2nd and 3rd applicants’ application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 May 2020, the applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 April 2020 (“Board’s Decision”) dismissing the appeals by the 1^st, 2^nd and 3^rd applicants against the decision of the Director of Immigration (“Director”) dated 28 February 2018 (“Director’s Decision”) rejecting the applicants’ non-refoulement claim on all applicable grounds rejecting their non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001002_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicants named the Board as the proposed interested party in addition to it having been named as the proposed respondent. As the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The 1^st applicant is the mother of the 2^nd and 3^rd applicants, who were born in Hong Kong. The 2^nd applicant is now 14 years old and the 3^rd applicant is almost 12. An application for judicial review by a child claimant should only proceed in accordance with the regime under O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. The court therefore sent a letter on 16 May 2025 to the 1^st applicant, reminding her to approach the Legal Aid Department or engage a private lawyer to represent the 2^nd and 3^rd applicants. At the time of the hearing, there was no information that the 1^st applicant had asked for any legal assistance.

4.  At the request of the applicants for an oral hearing, the court scheduled a hearing on 7 July 2025, which were attended by all the applicants in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra). However, the title of the proceedings should be amended as follows.

2^nd applicant: Khan Hareem Zainab, suing by her mother and next friend, Seemab Azka, the 1^st applicant

3^rd applicant: Khan Muhammad Husshain Abbas, suing by her mother and next friend, Seemab Azka, the 1^st applicant

5.  All the previous filings shall deem to have been so amended.

6.  The basis of the 3 applicants’ claims were that, if refouled to Pakistan, they would be harmed or killed by (i) the 1^st applicant’s family which disapproved of her marriage to her husband (“Husband”); and (ii) the Husband’s cousin. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

Discussion

7.  The leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[1] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting affirmation provided no such grounds.

9.  At the hearing, this court asked the 1^st applicant whether she had any grounds she wished to submit in support of the Leave Application in respect of herself. For herself, the 1^st applicant, apart from stating that she had already provided all the information, and had family problems, had nothing to say. On behalf of the 2^nd and 3^rd applicants, the 1^st applicant stated that their lives were also not safe back home. Although the 2^nd and 3^rd applicants were both minors and represented by the 1^st applicant, this court also separately asked them if they wanted to say anything as they seemed to have the maturity to do so. The 2^nd applicant stated that if she were refouled, her education would be disrupted; whilst the 3^rd applicant stated that his life would be in danger should he be refouled.

10.  When the court inquired from the 1^st applicant what happened to the Husband as he was also one of the claimants in the Director’s Decision, and one of the appellants in the Board’s Decision, the 1^st applicant then informed the court that the Husband had also made an application for leave to apply for judicial review against the Board’s Decision. Apart from that, she did not know anything about the Husband’s case.

11.  In order to find out more about the Husband’s case, a search on the Husband in the name of Khan Amjad Abbas was conducted. It was then discovered that this court, by a decision (HCAL 876/2020; [2025] HKCFI 4374) on 26 September 2025, dismissed on paper the Husband’s application for leave to apply for judicial review against the Board’s Decision.

12.  Notwithstanding that this court had dismissed the Husband’s application against the Board’s Decision, it will separately consider the Leave Application afresh.

13.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the hearing before the Board was a combined hearing attended by the Husband and the 1^st applicant who gave evidence. The Board found that their evidence credible. However, the Board found that the alleged threats posed by the 1^st applicant’s family were far-fetched and unfounded as the 1^st applicant had never suffered any injury, particularly that she had chosen to return to Pakistan previously despite the alleged threats. Since the Board rejected any risk of farm regarding the Husband’s cousin (Shafqat), the Board concluded that the 1^st applicant would not be subjected to harm if refouled. The Board further found that internal relocation and state protection would be reasonably available. Since the Board treated the appeals as combined appeals of the Husband and the 1^st, 2^nd and 3^rd applicants, the Board therefore also determined the appeals by the 2^nd and 3^rd applicants with reference to the outcome of the 1^st applicant’s appeal (as well as the Husband’s appeal). The Board therefore dismissed the appeals by the 1^st, 2^nd and 3^rd applicants. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Regarding the 1^st applicant

14.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to reach the conclusion that the 1^st applicant had not faced and would unlikely face risk of harm due to the absence of any past ill-treatment. The 1^st applicant has not advanced any grounds, whether written or oral, in support of the Leave Application. The 1^st applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The 1st applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Regarding the 2^nd and 3^rd applicants

15.  At the time of the hearing before the Board, the 2^nd applicant and the 3^rd applicant were respectively aged 6 and 4, who were not legally represented. The Board did not separately consider the relevant risks each of them would face if they were refouled. It is well-established that non-refoulement claims by children are separate claims even though they are similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant: see Re Jasvir Singh [4], following Fabio Arlyn Timogan (supra.).

16.  In the present case, the Board had not separately assessed the claims by the 2^nd and 3^rd applicants, and determined their appeals with the same set of primary facts of the Husband and if the 1^st applicant. Applying a high standard of fairness, the court will therefore, as required, pay special attention in examining whether there may be grounds specific to each of the 2^nd and the 3^rd applicants claims which had not or had not been adequately advanced to the Board on their behalf because of the lack of legal representation. After having taken a rigorous examination with anxious scrutiny, the court is satisfied the Board had achieved a high standard of fairness in dealing with claims of each of 2^nd and 3^rd applicants in finding that they would not be subjected to the risks their parents feared. This court is unable to find any underlying matters that may support minor-specific non-refoulement grounds which had not been advanced before the Board. The 2^nd and 3^rd applicants were born in Hong Kong, and had never been to Pakistan. Neither had the Husband (the father of the 2^nd and 3^rd applicants) nor the 1^st applicant advanced any grounds that their children would be subjected to any risks of harm specific to each of them. The 2^nd applicant’s submission of disruption of her education could not constitute any valid ground. The 3^rd applicant’s submission of harm to his life was only a bare assertion. In the circumstances, notwithstanding that the 2^nd and 3^rd applicants were not legally represented before the Board, their Leave Application should also be dismissed.

Orders

17.  The Form 86 be amended on the court’s own motion. The title of the proceedings be amended in accordance with [4] above on the court’s own motion.

18.  The 1^st, 2^nd and 3^rd applicants’ 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