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

HCAL 3738/2019

[2025] HKCFI 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3738 of 2019

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 oral submissions by the Applicant 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 Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 4 December 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the same accordingly on the court’s own motion.

3.  The Applicant had requested for an oral hearing for the application. The hearing took place on 11 March 2025. The Applicant attended in person. The Applicant however indicated that he had no submissions to make.

Background

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

Discussion

5.  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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form, the Applicant alleged that the Board’s Decision was unfair. He claimed that his life would be in danger in Pakistan. Further, he claimed that he cannot relocate as his paternal uncle and his sons can find him easily within Pakistan. In the supporting Affirmation, the Applicant said the Board rejected his claims without valid reason, especially given that he was tortured many times when he was young. He further stated that he cannot relocate to Lahore or Karachi as he does not have job there and cannot support himself. The Applicant further reiterated that his “enemy” can locate him in Karachi or Lahore.

7.  I have considered the Board’s Decision in details. 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. In so far as the Applicant referred to the alleged “tortures” when he was young, the Board had considered such evidence (see paragraphs 21 to 58 of the Board’s Decision) in details and had given reasons as to why it rejected the Applicant’s claims.

8.  On relocation, the Board had also considered the evidence given by the Applicant, including his past experience in Karachi and Lahore, in coming to the conclusion that he can safely and reasonably relocate there without undue hardship. There is nothing to indicate that the Board’s Decision in this regard is flawed.

9.  The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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 and the Leave Application is hereby dismissed.

10.  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

11.  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