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

HCAL 1382/2021

[2026] HKCFI 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1382 of 2021

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

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.  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 4 October 2021 (the “Form 86”), the Applicant sought 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 24 September 2021 (the “Board’s Decision”).

2.  In the Form 86, the Applicant appears to have named the Board as both the proposed respondent and the proposed interested party.  As per usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant.  It took place before me on 22 December (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history 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.  In short, the Applicant claimed that he was involved in a traffic accident where an individual known as Zulifqar was killed.  Zulifqar was said to be the son of a Jhanghaiz Khan (“JK”) who was the chairman of the Tehreek‑e-Insef (“PTI”) in his home village.  The PTI was the ruling party in Pakistan and JK was said to be rich and powerful.  The Applicant seeks protection on the ground that he will be subject to serious harm or even be killed by JK and his associates (the “Adversaries”) if he were to return to Pakistan.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23.  Hence I shall set out the brief reasons for my decision below.

6.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal.  Though in non‑refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny 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.

7.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.

8.  Regrettably, in the Form 86, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting affirmation, the Applicant only made a general assertion that he did not want to go back to Pakistan because his life would be in danger there.

9.  At the Hearing, the Applicant told me that he had nothing to add to his Leave Application.

10.  Notwithstanding the deficiencies in the Leave Application, I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. Having considered the evidence, it was open to the Board to find that:- 

(1)  The Applicant’s factual account was incredible as it contained various inconsistencies.  Hence there was no real risk of harm or ill-treatment to the Applicant (§§33, 44, 47, 49, 59). For example:-

(a)  Despite his earlier claim that JK was the chairman of the local PTI branch, at the oral hearing before the Board, the Applicant claimed that he did not know which party JK belonged to (§33(i)).

(b)  The Applicant also gave conflicting accounts as to the circumstances in which he was said to be assaulted by the Adversaries (§33(iv)).

(2)  Based on credible COI, the Board was entitled to conclude that adequate state protection would be afforded to the Applicant notwithstanding certain failings in the legal system (§§38, 50-55).

(3)  The Board was also entitled to find that reasonable internal relocation alternatives were available.  Given that the Applicant is an intelligent young man who had experience making his own living in Karachi and Islamabad with the assistance of his friends (§§56-58).

11.  In short, I do not see any reason to interfere with the Board’s findings.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision has any realistic prospects of success.  Accordingly, leave is refused.

Conclusion

12.  In the premises, I make an order that the Form 86 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