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

HCAL 741/2021

[2026] HKCFI 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 741 of 2021

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 the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the putative respondent and only 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 dated 24 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 10 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 15 October 2018.

2.  I amend the Form 86 on my own motion, naming only the TCAB as the putative respondent and only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same. When asked, he said that he had nothing to add.

4.  In the Form 86, the Applicant also sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]). The present application only concerns the TCAB Decision.

Background

5.  The Applicant is a national of Pakistan. In gist, his case is based on his claim that he will be ill-treated or even killed by his cousins because of a land dispute. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  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], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant’s affirmation enclosed a document setting out detailed grounds upon which the relief is sought. However, those grounds are either vague and generic, or a factual matter which have either been fully considered by the TCAB or are irrelevant. In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [67-78]. In particular, the TCAB found that the Applicant had not provided credible or reliable evidence in support of his story that he was harmed and threatened by his cousins because of a land dispute. There were many discrepancies in his evidence, none of which were satisfactorily explained or resolved [65]. This conclusion must be correct in view of the Applicant’s inability to be consistent even on key aspects of his case [49-64]. Given this conclusion, it is inevitable that the Applicant’s appeal below failed.

11.  There is a clear mismatch between the purported grounds the Applicant raised and the actual findings of the TCAB. It is clear that most of the grounds are not actually engaged in view of the TCAB’s findings (e.g. grounds 1, 2, 3, 4, 7 under “II the Director’s Decision”). The country of origin information was not critical to the TCAB’s findings in this case (grounds 5 and 6 under “II the Director’s Decision”). In any event, the TCAB did not commit such alleged legal errors.

12.  The Applicant also claimed that the TCAB failed to make sufficient enquiries or give him sufficient change to arrange relevant evidence (under “III – The Adjudicator’s Determination”). But there is no truth in the matter. The TCAB offered the Applicant every chance to explain the discrepancies, as is apparent from the TCAB’s reasoning.

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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