BAIG NASEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 172/2021

[2025] HKCFI 5621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 172 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the only Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 February 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 13 January 2021 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 13 November 2018 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named the Director and the Board as both the proposed respondents and the proposed interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

4.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant on 2 October 2025 at the address provided by the Applicant on the Form. The Immigration Department has also subsequently confirmed the address to be the Applicant’s latest address on record. On 16 and 17 October 2025, attempts were made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form and on Form No. 8 but it was found out that there was no such number registered.

5.  As proper notice of the hearing had been given to the Applicant at the address provided by the Applicant, I consider it appropriate to proceed to determine the Leave Application in the absence of the Applicant.

Background

6.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

7.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

8.  In the Form and in the supporting Affirmation, the Applicant provided a number of grounds which can generally be summarized as follows:-

(1)  The Director and the Board had failed to take into account many things and issues.

(2)  The Director and the Board made assumptions in the Applicant’s case. They did not know the real situation and condition of Pakistani culture. The Director never visited Pakistan, especially the Applicant’s area.

(3)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case. The Applicant claimed that he was tortured at the behest of and in full collusion with the police and the state law enforcement agencies as well as those in the high ups of the political circles. The Applicant claimed that the whole saga of misfortune was a direct result of misconduct of police officials. The Applicant further submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(5)  The Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(6)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims by interpreting COIs which suited his pre-conceived conclusion. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had complied reports on the matter which support the Applicant’s assertions.

(7)  The Director had failed to attain the high standard of fairness required by the Wednesbury test. As such, the Director’s Decision is unreasonable.

(8)  The Board had failed to make sufficient enquiries before finalizing the determination. The Board had failed to appreciate that the Applicant is in Hong Kong under custody and had limited options to gather evidence. The Board had failed to give sufficient chance to the Applicant to arrange relevant evidence.

(9)  The Director had violated the laws in considering the non-refoulement claim.

(10)  The Board’s Decision and the Director’s Decision were unlawful.

9.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below. In so far as the Applicant’s complaints are made against the Director, I refer to my observation and ruling in §2 above. I shall further consider such complaints as if the complaints were made against the Board as well.

10.  In relation to points (1), (4), (5), (7), (9) and (10), the complaints are bare assertions and lack particulars and elaboration. The Applicant has failed to identify precisely what evidence or arguments the Board was alleged to have overlooked, failed to take into account, or failed to give sufficient weight. The Applicant has also failed to explain precisely how the Board had allegedly “violated” the laws. Specifically in relation to point (5), the Board was entitled to reject the Applicant’s claim that the police in Pakistan would not be able to help him (§§56-59 of the Board’s Decision). I see no errors committed by the Board.

11.  In relation to Point (2) above, the Applicant has failed to identify what assumption(s) the Board had allegedly made which the Applicant considers to be wrong. Further, there is no legal basis to require the Director or the Board to actually visit the Applicant’s home country to conduct any investigation of a non-refoulement claim. Whilst the inquiry is one of joint endeavor, the burden is on the Applicant to prove his claims. In the present case, the Director and the Board had plainly considered the evidence adduced before deciding on the claims. Again, I see no errors committed by the Board.

12.  In relation to Point (3), the Applicant’s claim is based on the alleged threat from his cousin because of a dispute on a piece of land (§§7-9 of the Board’s Decision). There was no allegation or evidence to suggest that the state, the police or any public officials were involved, or that the alleged acts or threats of his cousin were committed on behalf of the state. Accordingly, this ground has no relevance in the context of the case.

13.  In relation to point (6), the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. The alleged corruption and incompetence of the administration in Pakistan was considered by the Board but the Board was entitled to conclude that there is insufficient evidence showing that the police in Pakistan was not able to help (§§56-59 of the Board’s Decision).

14.  Lastly, point (8) above is unmeritorious. The Applicant had been given sufficient time and opportunity to present his case and adduce evidence in support. In fact, at the hearing before the Board on 9 October 2020, the Applicant was specifically asked whether he had new information to provide to the Board. The Applicant responded by indicating that he had no further information to add (§31 of the Board’s Decision).

15.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on its evaluation of the evidence (§§31-61 of the Board’s Decision). I see no errors in the Board’s reasoning. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

16.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

17.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

18.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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