KHALID NAVEED MIRZA alias RAZA AHMED KHALED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1097/2020

[2025] HKCFI 3442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1097 of 2020

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as only the Putative Respondent; and

b.  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 4 June 2020 (the “Form 86”), 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 28 May 2020 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named the Board and the Director of Immigration (“Director”) as both the proposed respondents. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 17 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details 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. In short, the Applicant came from Gujrat, Punjab in Pakistan. He claimed that he would be seriously harmed or killed by members or supporters of the Pakistan Muslim League (Nawaz) (“PML-N”) because of his support for the Pakistan Muslim League (Quaid e Azam Group) (“PML-Q”) if he were to return to Pakistan. He also claimed that false allegations were made against him by his political adversaries for participation of attack against PML-N members. Hence, it is the Applicant’s belief that he would be targeted by the authorities if he returns to his home country.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Hence, I will set out the brief reasons for my decision below.

6.  The Court of Appeal has emphasised time and time again that the determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. Finding of fact on matters such as risk of harm, availability of state protection and internal relocation alternatives are exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.  It is also trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

8.  In the Form 86, the Applicant did not provide any specific grounds of review in support of the Leave Application but only made a general assertion that the Board’s Decision was unfair and Wednesbury unreasonable. In his supporting affirmation, he claimed that he would like to submit certain documents when he is released from custody. No explanation was made as to what these documents were and how they affect his claim.

9.  At the Hearing, the Applicant confirmed with me that in fact there was no further document that he would like to submit.

10.  Notwithstanding the above and in the interest of fairness, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

11.  Having considered the correct legal principles (§§52-69 of the Board’s Decision), The Board was entitled to find that there was no real risk of serious harm or death if the Applicant returns to Pakistan (§§100-109). Even after taking into account the Applicant’s medical conditions, the Board found the Applicant’s factual account of his alleged affiliation with PML-Q implausible as it contained material contradictions, inconsistencies and omissions, e.g. despite claiming to be an active supporter of the PML-Q, the Applicant was unable to give satisfactory answers as to basic information concerning well-known political events in Pakistan such as the time when general elections were held or the party affiliation of politicians known to him (§§17-22, 40-41, 48, 71-74, 86-89 of the Board’s Decision).

12.  I also see no basis to interfere with the Board’s finding that in any event there would be sufficient state protection if the Applicant returns to Pakistan (§§94-95, 110-118 of the Board’s Decision):-

(1)  What is required of the country of nationality is that it has taken reasonable measures to make the necessary protection available.

(2)  The Board considered that Country of Origin information have shown that Pakistan had laws in place to prevent unlawful killings. There was also insufficient evidence to show that the Applicant had made sufficient efforts to seek assistance from relevant authorities.

13.  In short, 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.

Conclusion

14.  In the premises, I make an order that the Form 86 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