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

HCAL 1807/2020

[2025] HKCFI 4390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1807 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 only the DOI as a putative interested party; 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 10 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 21 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 29 March 2018 in refusing his non-refoulement protection claim. He named the TCAB as the proposed respondent and both the TCAB and the Immigration Department as interested parties.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

3.  The Applicant requested for a hearing but he did not attend the scheduled hearing on 2 September 2025 at 10am on time. I therefore adjourned this application to 10am on 8 September 2025. However, due to inclement weather, the hearing was further adjourned to 10am on 9 September 2025.

4.  The Applicant attended the further adjourned hearing and stated that his father, his uncle and 2 sons of his uncle had been killed in the past 3-4 months. When asked if he had any documents to show when, and more importantly how and by whom they were killed, the Applicant said he did not have any document with him.

5.  With sympathy where it is due, I am unable to take these into account as in support of the Applicant’s case and in turn this application.

Background

6.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that, if he was returned, he would be killed by a person and his family members who are connected with the ruling political party and whom he had a monetary dispute with. 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

7.  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).

8.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and all materials placed before it, including the Applicant’s testimony at the hearing before it [5-26]. The TCAB bore in mind the correct approach in the appeal and in assessment of the evidence [27-32], and found after thorough analysis that the Applicant’s allegations were not made out [33-54].

10.  The TCAB then proceed to analyse each of the four applicable grounds under the USM, with in mind the correct principles in each instance, and concluded that none was made out [55-69].

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

Conclusion

12.  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