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

HCAL 558/2020

[2025] HKCFI 2309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 558 of 2020

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 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 8April 2020 (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 16 March 2020 (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 Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 12 May 2025.  Notice of hearing was issued to the Applicant in advance.  According to the record, attempt was made to remind the Applicant of the hearing by phone on 9 May 2025 but in vain.  The Applicant did not attend the hearing.

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 stated that he was not satisfied with the Board’s Decision without giving any particulars.  In the supporting Affirmation, the Applicant pointed out that the Board erred in §§34-38 of the Board’s Decision.  He further stated that he accepted that he was only slightly tortured but he could not take any risk to ignore his enemies’ power.  He claimed that his enemies would not allow him to live because he was a member of the Sipah-e-Sahaba Pakistan (SSP) and that they thought he was a spy to collect data for SSP.  Finally, the Applicant claimed that he did not have written proof of this, otherwise he would have submitted to the Board. 

7.  I have considered the Board’s Decision in details, in particular §§34-38 thereof in which the Applicant claimed the Board had erred.  §§34-38 of the Board’s Decisions contain the Board’s findings based on the evidence.  In fact, most of the findings in those paragraphs were acceptance of the evidence adduced by the Applicant.  Accordingly, I have difficulty in understanding why the Applicant claimed the Board to have erred in those paragraphs.  In any event, the Applicant has not provided particulars or explained his allegation. I therefore reject the Applicant’s claim that the Board had erred in those paragraphs.

8.  In respect of other points mentioned in the supporting Affirmation, they were merely repetition of the Applicant’s case.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  The Board’s Decision was comprehensive with adequate reasons provided.  In particular, the Board had thoroughly considered the Applicant’s claims and the evidence, and was entitled to conclude that the Applicant would not face a real risk of suffering if he returns to Pakistan (§53 of the Board’s Decision).  The Board’s Decision 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.

9.  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.    

Conclusion

10.  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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000558_2020_files/the_Board's_Decision.pdf