KHAN WASIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1692/2020

[2025] HKCFI 4387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1692 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 oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent, the DOI as the putative interested party and the TCAB Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 20 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Director of Immigration (the “DOI”) dated 30 July 2020. He named the DOI and the Adjudicator of the Non-refoulement Claims Petition Office as the proposed respondent and the Torture Claims Appeal Board (the “TCAB”) as an interested party.

2.  From the case record, there was a decision by the DOI dated 27 February 2020 refusing the Applicant’s non-refoulement protection claim. This decision was then affirmed by the TCAB by its decision dated 30 July 2020 (the “TCAB Decision”).

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision, so I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for an oral hearing and attended the same.

Background

5.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be killed by enemies of opposing political affiliation if he was returned to Pakistan. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant complained that the TCAB “gave wrong decision…without any valid reason” and that his father, who shares the same political affiliation as him, not being tortured by members of the opposing party is not a valid reason. He then reiterated the danger posted by the opposing party in Pakistan.

8.  At the hearing on 2 September 2025, the Applicant said he had nothing much to say but only emphasised that he would be killed by his enemies if he was returned to Pakistan, and that his family was still being threatened by those enemies.

9.  Turning to the TCAB Decision, after reminding itself of the relevant burden and standard of proof [9], the TCAB considered all materials pertaining to the Applicant’s case and his evidence at the hearing before it [10-18]; thoroughly analysed the same, and came to the view that the Applicant’s allegations of life-threatening danger were not made out [19-21].

10.  After considering relevant COI, the TCAB further concluded that state protection was ready and available to the Applicant [22-26].

11.  The TCAB then went on to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles, and concluded that none of the grounds was made out [27-51].

12.  Finally, the TCAB also analysed the issue of internal relocation and came to the conclusion that it was available to the Applicant [52-55].

13.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

14.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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