SHAH SAJJAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 36/2020

[2025] HKCFI 6246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 36 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant Shah Sajjad filed the Form 86 dated 3 January 2020 seeking leave for judicial review of the Decision of the Torture Claims Appeal Board (“TCAB”) dated 13 December 2019 against his non-refoulement claim.

2.  The Applicant is a Pakistani born in 1976. He fell in love with a girl Saima in 2014. He was threatened orally four times, with threat of death on the last occasion. He was also assaulted between the 3^rd and 4^th threats, by 10 odd people with sticks and iron knuckles. He reported the assault to the police, but no action was taken since Saima’s family was connected to the police. Eventually he left for China, then onto Hong Kong. He could not relocate locally since Saima’s family could find him.

3.  The TCAB considered his appeal on the comprehensive grounds: (1) the risk under Part VIIC of the Immigration Ordinance (Cap.115) (“torture risk”); (2) risk to his right to life under Article 2 of the Hong Kong Bill of Rights (Cap.383) (“BOR2 risk”). (3) risk of cruel, inhumane or degrading treatment or punishment (“CIDTP risks”) under Article 3 of the Hong Kong Bill of Rights (“BOR3 risk”); (4) risk of prosecution with reference to the non-refoulement principles under Article 33 of the Convention Relating to the Status of Refugees 1951 (“persecution risk”).

4.  The TCAB found the Applicant had made bare assertions without objective support. He reported to police but not any higher authorities when no action taken. Saima’s family was non-state actors.

5.  The Form 86 did not state any grounds, and his Affirmation simply stated he did not agree with TCAB’s decision.

6.  Judicial review does not operate as a rehearing of the refoulement claim, but to consider whether the original decision maker(s) has erred in the law, irrationality in the decision(s) or procedural unfairness (see cases: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524).

7.  The Applicant was absent at the leave hearing. There was no substantive grounds of error on the part of TCAB.

8.  Hence, leave is refused.

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