ELLAHI BAKHSHISH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1717/2020

[2025] HKCFI 4388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1717 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 the TCAB as the only putative respondent, the DOI as the putative interested party and the TCAB Decision dated 16 July 2020 as the decision sought to be reviewed; 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 25 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 18 February 2016, naming the Torture Claims Appeal Board (the “TCAB”) and the Director of Immigration (the “DOI”) as proposed respondents, and TCAB also as an interested party.

2.  From the case record, there was a decision dated 18 February 2016 by the DOI refusing the Applicant’s non-refoulement protection claim on the grounds of torture risk, BOR3 risk and persecution risk. The DOI subsequently further considered the claim on the ground of BOR2 risk and by a further decision dated 18 January 2017 refused the same.

3.  The TCAB then considered both of the decisions by the DOI above, and by a decision dated 16 July 2020 affirmed both (the “TCAB Decision”).

4.  I take it that the Applicant is seeking judicial review of the TCAB Decision and amended the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

5.  The Applicant requested for an oral hearing of this application and attended the same. When asked if he had anything to add apart from the documents submitted, he confirmed that he had not.

Background

6.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be killed by people of opposing political affiliation if he was turned to Pakistan. 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, bearing in mind the relevant principles on the nature of the hearing before it, the burden and standard of proof [6-10, 16-17], the TCAB thoroughly considered the Applicant’s case and evidence and made necessary findings on the facts [11-18].

10.  On the basis of these findings, the TCAB then proceeded to analyse each of the four applicable grounds under the USM [19-60], and concluded that none was made out [61-64].

11.  The TCAB also found that state protection [36-43] and internal relocation [44-49] are both available to the Applicant.

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

Conclusion

13.  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