SABIR HUSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following:

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the putative respondent and 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 22 December 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following Decisions:

a.   The Decision of the Director of Immigration (“the Director”) dated 19 March 2013 (“the 2013 Imm Decision”);

b.   The Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 10 December 2021 (the “Board’s Decision”). In the Board’s Decision, the Board rejected the Applicant’s appeal against the Decision of the Director dated 16 August 2018.

2.  The Leave Applicant is supported by the Applicant’s Affirmation dated 22 December 2021 (the “Affirmation”).

3.  While the Applicant stated in the Form that he intends to seek leave to apply for judicial review against both the 2013 Imm Decision and the Board’s Decision, in the Affirmation, the Applicant made clear that the Leave Application only concerns the Board’s Decision and he enclosed a copy of the Board’s Decision as exhibit to the Affirmation.  In any event, the Applicant had previously lodged an appeal against the 2013 Imm Decision and the appeal had been dismissed by the Board by a Decision dated 22 May 2013.  In the circumstances, the 2013 Imm Decision is no longer amenable to judicial review as it has been superseded by the Board’s above Decision dated 22 May 2013: see Re Moshin Ali [2018] HKCA 549 at para. 45.

4.  I will therefore consider this Leave Application on the basis that the Applicant is only seeking leave for judicial review against the Board’s Decision.

5.  I amend the Form 86 on my own volition to name the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the only Putative Respondent and the Director of Immigration as the only Putative Interested Party.

6.  In the Affirmation, the Applicant sets out the following grounds in support of the Leave Application:

a.   With respect to para. 40 of the Board’s Decision[1], the Applicant claimed that he had all the proofs of medical reports and certain police FIR reports but he was not able to provide them.  He initially had these documents in his possession but he did not bring them when he left Pakistan as he did not know those documents would be useful, and his family subsequently threw the documents.  When his friend asked the police to provide the FIR reports, the police asked for money before they would release the report but he did not have the money.

b.   With respect to para. 46 of the Board’s Decision, the Applicant accepted that he mentioned the wrong date on which Nadeem fired at him, i.e. the second assault. But he insisted that the incident took place on a Friday.  He said that he was depressed when he came to Hong Kong due to his past situation and his family. He said that the above should not be a ground for rejecting his appeal.

c.   With respect to para. 52, the Applicant said that he was told by the agent that he would be going to Korea, not to Hong Kong.  He said that the above should not be a ground for rejecting his appeal.

d.   With respect to paras. 83 and 84 of the Decision, the Applicant stated that he “can relocate anywhere in [Pakistan]”.  This seems to be a typo as the Applicant should mean he “[cannot] relocate anywhere in [Pakistan]”.  The Applicant said that he has gotten married in Hong Kong and Nadeem was furious about it such that he would kill the Applicant.

7.  The hearing for the Leave Application took place on 19 January 2026 (“the Hearing”).  At the Hearing, the Applicant submitted that his Leave Application should be allowed as he is married to a permanent resident of Hong Kong and he has a family here.  Further, he would not be able to survive if he returns to Pakistan.

Background

8.  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 them here.  The hyperlink to the Board’s Decision is included below[2] for reference.

Discussion

9.  The relevant legal principles are well established.  The Court’s role 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 para. 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

10.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

11.  I have reviewed the Board’s Decision in detail.  The Board has fully considered the Applicant’s grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

12.  With respect to the ground stated in paragraph 6 (a) above, the alleged medical report and FIR report were not before the Board nor this Court.  I do not consider their alleged existence to have any relevance to the Leave Application.

13.  With respect to paragraphs 6 (b) and 6 (c) above, these were only two of the many aspects of the Applicant’s evidence which the Board considered in deciding whether the Applicant was credible in claiming that Nadeem and his associates had assaulted him. As explained by the Board in paragraph 47 of the Board’s Decision, the Applicant’s evidence about the shooting incident of the second assault was unclear, unreasonable and illogical.  It was on that overall basis that the Board rejected the Applicant’s allegation about the shooting incident.  In any event, in paragraphs 63-74 of the Board’s Decision, the Board went ahead to consider, and found, that even if the Applicant’s case were accepted and he had been assaulted twice by Nadeem and his associates, the likelihood of the alleged risk of the Applicant being killed by these parties to materialize would be low.

14.  As to paragraph 6 (d) above, having a marriage in Hong Kong is not a ground for non-refoulment protection.  Apart from the Applicant’s bare assertion, there is nothing to suggest that Nadeem would kill the Applicant knowing that he has gotten married.

15.  As to the reason which the Applicant told the Court at the Hearing, see paragraph 7 above, it is irrelevant to the applicant’s claim for non-refoulment protection or the Leave Application.

16.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant documents and the grounds raised by the Applicant in reaching the present decision.

Conclusion

17.  For the reasons stated above, I make an order that 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