ABBAS KHIZAR 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 Form 86 be amended by naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the only 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 19 January 2022 (the “Form”), the Applicant applied for 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 12 November 2021 (the “Board’s Decision”).  In the Board’s Decision, the Board rejected the Applicant’s appeal against the Decision of the Director of Immigration dated 18 May 2018 (the “Imm Decision”).

2.   In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant said that he wishes to seek leave to apply for judicial review of the Board’s Decision as well as the Imm Decision and exhibited a copy of each of the above decisions.

3.  In the Form, the Applicant only seeks leave to apply for judicial review against the Board’s Decision. In any event, the Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board is pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para 45.  Thus, I treat the Leave Application to cover the Board’s Decision only.

4.  I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the putative interested party.

5.  The Applicant requested an oral hearing for the Leave Application, which took place on 28 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that he has nothing to add to his Leave Application.

Background

6.  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 is included below[1] for reference.

Discussion

7.  The Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

8.  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 scrutinising 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. 

9.  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.

10.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  The Board found that the Applicant’s evidence cannot be relied on as truthful and that his evidence does not support his case that he is at risk of harm or at risk of his life as there is no direct evidence that Khan Bahadar or the Taliban is targeting the Applicant to kill him: see the Board’s Decision paras 32-38. In addition, the Board considered that the COI shows that reasonable state protection would be available to the Applicant if he returns to Pakistan and that there are internal relocation options available to the Applicant: see the Board’s Decision paras 39-44.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras 45-64.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.  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 materials in reaching the present decision.

Conclusion

12.  For the reasons stated above, I will dismiss the Leave 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