ULLAH AHSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 797/2020

[2025] HKCFI 2967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 797 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 Applicant’s Form 86 be amended to name the TCAB as putative respondent and the DI as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 4 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 16 March 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 29 March 2018. Both the TCAB and the DI have been named as putative respondents. I amended the Form 86 on my own motion to name the TCAB as the only putative respondent and the DI as a putative interested party to this application.

3.  The Applicant set out a few grounds on which relief is sought in this proposed judicial review. As the DI’s own decision has been substituted by the TCAB Decision, I will only focus on those challenges against the TCAB Decision.

4.  First, it was said the Applicant “believed” the TCAB Decision was Wednesbury unreasonable and reached “wrongly”. Secondly, it was said Article 2 of the Bill of Rights covered extra-judicial killings such as those faced by the Applicant if he were to return to Pakistan (his country of origin). Thirdly, it was said the TCAB did not give sufficient time and chance for the Applicant to arrange relevant evidence.

5.  As mentioned in paragraph 18 of the TCAB Decision, when the Applicant filed the initial Non-Refoulement Claim Form on 21 February 2018 with the assistance of a lawyer, he already indicated he needed to obtain from Pakistan a “FIR” (First Information Report) against him and certain medical documents. In the screening interview, he indicated he had been unable to obtain those documents. Subsequently, in the appeal process, the Applicant submitted a document resembling a “FIR”; the contents of this document was set out at length in paragraph 19 of the TCAB Decision.

6.  In the subsequent section with heading “CONSIDERATIONS OF FACTS – CREDIBILITY”, the TCAB set out the principles it adopted to evaluate the Applicant’s evidence and the Applicant’s answers to various factual inquiries related to his claim. In gist, the answers showed internal inconsistency in the Applicant’s assertions made at different times and the Applicant’s lack of actual involvement in political activities. The content of the “FIR” was also assessed comprehensively.

7.  Having considered the totality of the evidence, the TCAB did not accept that the Applicant was an actual or perceived supporter of a political party called PTI as claimed. The TCAB did not accept the Applicant to have involved in political arguments with anyone, or that he had been targeted for harm, threatened or beaten by a person called Lala or any of Lala’s network within another political party called PML-N. The TCAB was not satisfied that the Applicant faced a real chance of harm of any kind for any of the reasons claimed or arising on the evidence. By reason of such findings, it followed the Applicant’s non-refoulement claim was rejected and DI’s first-tier decision was confirmed. The TCAB had set out the relevant legal principles it considered, including the concept of State acquiescence under torture risk.

8.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the evidence. It is not reasonably arguable that the TCAB Decision was unreasonable in the Wednesbury sense. The risk of extra-judicial ill-treatment had been considered, as can be seen from the TCAB’s reference to the concept of State acquiescence and the alleged potential of harm from a person called Lala, just the outcome of such consideration was not in the Applicant’s favour. While the Applicant complained he had not been given sufficient time to prepare evidence, such complaint was vague and not supported by any particulars in the Form 86 or the supporting affirmation. To the contrary, according to the TCAB Decision, it is apparent the Applicant had the chance to adduce a document resembling a “FIR” at the appeal stage, which was not available during his tier-one screening interview, and that document had been analysed at length by the TCAB. During the oral hearing of this leave application, the Applicant also confirmed he had submitted to the TCAB the “FIR” he wanted to submit and it had been considered. He did not explain what other evidence he could have put before the TCAB but was not afforded a reasonable chance. I am unable to detect any error on the TCAB’s part in this regard.

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

10.  The leave application to apply for judicial review is thus 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