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

HCAL 708/2021

[2025] HKCFI 5995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 708 OF 2021

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.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 17 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 29 May 2020.

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

3.  The Applicant requested for a hearing of this application. During the hearing, he had nothing to add, other than the fact that he was applying for legal aid. He submitted the Notice to the Applicant dated 19 November 2025 to the court. It is clear that he only applied for legal aid recently, notwithstanding the fact that he made the present application for judicial review on 17 May 2021. I directed that his application for judicial review would proceed, without a stay of proceedings. (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17)

Background

4.  The Appellant is a national of Pakistan. In gist, he fears that he would be killed by his enemies, namely, a member of the PMLN and/or his supporters for political disputes and differences. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought other than stating that “I am not satisfied with the decision of the immigration department my life is still in danger in my home country. So please accept my application”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [81-108]. In particular, the TCAB, having considered the relevant country of origin material and assuming in the Applicant’s favour that the dispute did happen [55], still came to the conclusion that (1) the Applicant’s injury had not attained a level of the requisite severity [52-55] (2) there was no evidence to show that there was any involvement at any stage by a public official or other person acting in an official capacity [63]; (3) there would be state protection [59-66]; and (4) there was no difficulty for the Applicant to relocate to other cities in Pakistan [76-80].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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