BAIG SHARAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 254/2023

[2026] HKCFI 5047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 254 of 2023

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 Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and only the Director of Immigration as the putative interest party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 20 February 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 13 January 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 3 November 2021 in refusing the applicant’s non‑refoulement protection claim. He named the Board and the Director as both the putative respondent and interested parties.

2.  I amended the Form 86 on my own motion to name only the Board as the putative respondent and only the Director as the putative interested party.

3.  The applicant requested for a hearing and he attended the same. However, when asked if there was anything he wished to add to what has already been stated in his application, the applicant answered in the negative.  

BACKGROUND

4.  The applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed by the family of his girlfriend. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  The applicant has not specified any grounds on which relief is sought in the Form 86 and the affirmation filed in support of the leave application other than to say that his life is still in danger in his home country.   

7.  It has been held that in a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142]. He is also required to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [18-43].

9.  Contrary to the applicant’s allegation, the Board has carefully taken into consideration of the applicant’s case and evidence [10-16].

10.  After thoroughly analysing and assessing the above, the Board came to the findings and conclusion that none of the grounds was made out [46-51].

11.  Having looked at the Board’s Decision carefully, I am not able to find the Board has failed to consider any of the matters raised by the applicant in his claims.

12.  Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

13.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the 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