BUTT ZEESHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 110/2021

[2025] HKCFI 5518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 110 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 as follows:- (1) the Torture Claims Appeal Board / Non refoulement Claims Petition Office be named as the 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 1 February 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 18 January 2021 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 2 March 2020 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents.  The Applicant did not name any interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

4.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person. The Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  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 or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant attached a document setting out a number of grounds which can generally be summarized as follows:-

(1)  The Director and the Board had wrongly assessed his claims.  The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test).  The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).  He further claimed that the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings.

(2)  The Board had failed to give the Applicant sufficient time and chance to arrange relevant evidence in support of his claim and appeal.

(3)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case.  This had led to an unfair outcome of the case.  The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles.  The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(5)  The Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(6)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims.  There was corruption and incompetence of the administration in the Applicant’s country.  Various human rights organizations had complied reports on the matter which support the Applicant’s assertions.

(7)  The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

8.  I do not consider any of the above Applicant’s contentions meritorious. I shall briefly set out my reasons below.  In so far as the Applicant’s complaints are made against the Director, I refer to my ruling in §2 above.  I shall further consider such complaints as if the complaints were made against the Board as well. 

9.  In relation to point (1) above, the Board had cited and applied the correct legal principles under Article 2 of the HKBORO (§§17 and 36 of the Board’s Decision).  The Board had rightly pointed out that the Applicant’s case was based on the allegation that Chaudhry would hurt or kill him because of a land dispute.  Accordingly, the right protected by “BOR2” has no relevance to the matter.  There is plainly no evidence showing that the Applicant would be at risk of harm from capital punishment inflicted by the Government in Pakistan or that he would be at risk of “BOR2” harm if refouled (§36 of the Board’s Decision). 

10.  Point (2) is unmeritorious.  The Applicant had sufficient time and opportunity to prepare and submit evidence both before the Director and the Board.  The Applicant did not apply for adjournment or further time to file evidence before the Board.  The Applicant has also failed to identity precisely what further evidence he intended to adduce.

11.  In relation to Point (3) above, the Applicant’s case is based on a land dispute.  There was no allegation or evidence to suggest that the state or any public officials were involved (§29 of the Board’s Decision).  Accordingly, this ground has no relevance in the context of the case. 

12.  In respect of point (4) above, the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight. 

13.  In respect of Point (5) above, the Applicant has failed to identify the evidence which he alleged the Board had failed to take into account or give sufficient weight.  The Board had duly considered the COI (§§31-35 of the Board’s Decision).  I see no errors committed by the Board in this regard. 

14.  In relation to point (6) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him.  The Board had duly considered all the COI and was entitled to come to the conclusion that reasonable state protection would be available to the Applicant (§§31-35 of the Board’s Decision).  Again, I do not see any errors committed by the Board in its reasoning.

15.  Point (7) above is a general assertion without particulars in support. The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

16.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board was entitled to reject the Applicant’s claims based on the reasons provided (§§26-47 of the Board’s Decision).   The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

17.  In the premises, 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.

18.  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, as well as the grounds advanced by the Applicant.

Conclusion

19.  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