KHAN JAMSHAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1466/2020

[2025] HKCFI 5320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1466 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 Form 86 be amended on the Court’s own motion to name only the Non-Refoulement Claims Petition Office as the Putative Respondent, to name only the Director of Immigration as the Putative Interested Party, and to substitute “Non-Refoulement Claims Petition Office” in place of “Torture Claims Appeal Board”.

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 filed on 14 July 2020 (“Form 86”), and a supporting affirmation also dated and filed on 14 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision said by him to be one of the Torture Claims Appeal Board (“TCAB”) dated 20 June 2020. However, the decision exhibited to the affirmation was actually one of Non-Refoulement Claims Petition Office (“NRCPO”)) dated 24 June 2020 (“NRCPO Decision”)[1].

2.  The Applicant sought an oral hearing of his application. He appeared at the scheduled hearing on 7 August 2025 and said he had nothing to say in addition to the matters set out in the papers.

3.  I have amended the Form 86 to properly identify the putative respondent, the putative interested party, and to reflect the nature and date of the relevant decision. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision and the USM 2668 Decision (the latter of which is defined below). I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by members and/or supporters of the PML-N because he had refused to leave the PTI and to join the PML-N;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 13 November 2015 (“Director’s Decision”);

c.  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 5 February 2016 and issued a decision on 3 March 2016[5] (“the USM 2668 Decision”) in which it was held that the Applicant’s claim for non-refoulement protection on those three grounds failed;

d.  The Director by a letter dated 2 December 2016 invited the Applicant to submit additional facts relating to his non-refoulement claim on all applicable grounds, including in relation to BOR 2 Risk[6]. The Applicant failed to do so by the deadline of 16 December 2016. The Director then, by a decision dated 6 January 2017 (“Director’s Further Decision”), rejected the Applicant’s claim for non-refoulement protection under BOR 2 Risk;

e.  The Applicant petitioned to the NRCPO for relief against the Director’s Further Decision. The petition was dealt with by the same adjudicator who had made the USM 2668 Decision, who issued the NRCPO Decision on 24 June 2020, in which she found that she was not satisfied that the Applicant faced BOR 2 Risk upon being refouled, and confirmed the Director’s Further Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While 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 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/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  In the Form 86 the Applicant claimed that he was “not satisfied from [the TCAB’s] decision”, but did not identify any grounds of judicial review[7].

9.  However, the Affirmation does complain that the TCAB/NRCPO “erred [at] paragraph no 17 to 23” and makes some supporting allegations which I reproduce verbatim as follows:

“I accepted that PTI won the election but still my opponents are more wrost bcz PTI won the election and I am the one who sugesting to people to support PTI. Now the PTJ government performance is not good and they are unable to give me protection. I can not relocate in Khyber pakhtun khwa bcz of discremintion. they are pakhtun and i am Panjabi.and its not easy to find job there and they will relocate me easily.”

10.  While this could be considered to be an impermissible attempt (given the purpose of judicial review) to relitigate/appeal the merits of his claim based on bare and unsupported allegations, given the seriousness of the issues at hand I have borne such in mind and considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

11.  The NRCPO began with the Applicant’s procedural history and background, including discussion of the USM 2668 Decision (in which, she observed, she had already made material findings of fact) and the further information provided by the Applicant to the NRCPO in his petition to such dated 7 August 2017 (Paragraphs 1 to 8). There was then discussion of the nature and scope of BOR 2 Risk on the basis that the relevant perpetrator against which protection was granted was the government of Pakistan, and of the relevant point in time for assessment of such (Paragraphs 9 to 14).

12.  The NRCPO then explained why it had decided not to hold an oral hearing, having regard to the Applicant’s conduct in refusing to answer questions at the hearing before the TCAB/NRCPO that had led to the USM 2668 Decision (Paragraphs 15 to 16) and to changes favourable to the Applicant (in particular, the fact that the PTI had come into power) that had taken place in Pakistan by the time of the NRCPO Decision, and the finding that he would be able to relocate to and thrive in Khyber Pakhtunkwa, which was dominated by PTI supporters (Paragraphs 17 to 18).

13.  Based on the above the NRCPO found that there was no real risk that he would be subject to treatment contrary to BOR 2. It was also not satisfied that there would be a breach of BOR 2, having regard to the lack of evidence to show the Applicant would be at risk of capital punishment from the government, or harm from the government that would place the Applicant’s life at risk. It also found that “There is nothing to suggest that he will be killed in Pakistan… in ways or circumstances which would violate BOR 2”. The NRCPO accordingly affirmed the Director’s Further Decision (Paragraphs 19 to 23).

14.  I can see that the NRCPO took too narrow a view as to the scope of BOR 2 Risk, as it may be violated by extra-judicial killings by State agents, or by non-State actors where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons. However, I do not see any reasonable argument that the NRCPO deviated from the requisite high standard of fairness in deciding to deal with the matter without an oral hearing given the factors in ST v Betty Kwan [2014] 4 HKLRD 288, and the matters and information that were before the NRCPO at the time it made the NRCPO Decision. I also do not consider that there is any reasonable argument that the NRCPO would have come (or indeed that another NRCPO would come, if the matter were now remitted) to a different conclusion as to BOR 2 Risk, and I consider that it would be futile to grant leave (RM v Muttrie (HCAL 166/2015, 3 March 2016) M. Ng. DHCJ. (as she was then) at §52, Kulwinder Kaur [2022] HKCA 49 at §§54 59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

15.  This is, firstly, as the NRCPO was entitled to take into account:

a.  The findings in the USM 2668 Decision as to the evidence on core allegations made in support of the Applicant’s claim and how such were reached[8], the obvious rejection by the TCAB/NRCPO of those aspects of the claim[9], and the consequent finding that there was no BOR 3 Risk (see, in particular, Paragraphs 8 to 17, 21 to 49, and 59 to 62 of the USM 2668 Decision); and

b.  That the Applicant had failed to provide new information to the Director in relation to BOR 2 Risk, and that the contents of his Notice of Appeal/Petition to the NRCPO were premised on the same core allegation of his involvement in the PTI, which already been rejected in the USM 2668 Decision after a hearing (see Paragraphs 7 and 8 NRCPO Decision, and the aforementioned portions of the USM 2668 Decision).

16.  Secondly, on remittal, not only would the NRCPO take into account the matters at paragraphs 15.a and b above, but also that (save for the Applicant’s admission in his Affirmation that the PTI had won the election) the Applicant’s bare and unsupported allegations in the Affirmation that relate to the PTI are premised and dependent on his alleged involvement in the PTI, which had been rejected in the USM 2668 Decision. It would hence also conclude that the Applicant’s claim for non-refoulement relief is also not assisted by his allegations in relation to internal relocation, and would reach the same conclusion as to BOR 2 Risk.

17.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success and which justify the grant of leave.

Conclusion

18.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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