KHAN NUSRAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1442/2021

[2026] HKCFI 2360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1442 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 documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) 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 18 October 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 5 October 2021 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 11 May 2021 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents.  The Applicant did not name any interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

4.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 12 January 2026 and the Applicant attended in person.  The Applicant submitted some further documents (4 pages in total) in support of the Leave Application at the hearing.  When being asked about the nature of the documents and their relevance, the Applicant indicated that the documents show the general situation in Pakistan.  One of the articles was entitled “Pakistan: Hundreds of Imran Khan supporters arrested”.  The Applicant said both his father and himself are Imran Khan supporters.  Save as aforesaid, the Applicant said he had nothing to say in respect of the Leave Application.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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 Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  The Applicant did not provide any grounds in the supporting Affirmation. The Applicant provided the following grounds in the Form:-

(1)   The Director and the Board had wrongly assessed his claims.  The Board’s Decision and the Director’s Decision were not reasonable and fair (as required by the Wednesbury test).  The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).  He further claimed that the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings.

(2)   The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case.  This had led to an unfair outcome of the case.  The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles.  The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)   The Board had acted unreasonably and was procedurally unfair by placing too much reliance on COI but had failed to take the Applicant’s personal background and experience into account.

(4)   The Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(5)   The Board was procedurally improper and/or unfair when assessing whether to accept the Applicant’s explanations, and had unreasonably required the Applicant to respond to questions that he was not in a position to offer any response. 

(6)   The Board had failed to take into account the nexus of political parties and official corruption which exists in his country, making the persecution effectively persecution by the state.

(7)   The Director had failed to take into account or give enough weight to the Applicant’s argument.

(8)   The Director showed an unfair attitude towards the Applicant or the Applicant’s claims.  There was corruption and incompetence of the administration in the Applicant’s country.  Various human rights organizations had complied reports on the matter which support the Applicant’s assertions.

(9)   The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

(10)   The Board’s Decision was irrational.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.  In so far as the Applicant’s complaints are made against the Director, I refer to my ruling in §2 above.  I shall further consider such complaints as if the complaints were made against the Board as well. 

9.  In relation to point (1) above, there is nothing to suggest that the Board had applied any incorrect legal principles under Article 2 of the HKBORO.  The Applicant’s claims were based on some land disputes with the Applicant’s father’s cousins (§5 of the Board’s Decision).  The Board had rightly concluded that the claim based on BOR 2 was not made out (§§75-76 of the Board’s Decision).  I do not see any error committed by the Board in this regard. 

10.  In relation to Point (2) above, the Applicant’s case is based on some land disputes.  There was no allegation or evidence to suggest that the state or any public officials were involved.  Accordingly, this ground has no relevance in the context of the case. 

11.  Point (3) is a bare allegation without particulars.  The Applicant has not explained how the Board had acted unfairly or unreasonably.  The Applicant has also failed to identify the COI which the Board had allegedly taken too much reliance on.  He has also failed to identify what personal background and experience of the Applicant the Board had allegedly overlooked and the relevance thereof.

12.  Points (4) to (7), (9) and (10) likewise lack particulars.  The Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight. 

13.  In relation to point (8) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. 

14.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board was entitled to reject the Applicant’s claims based on the reasons provided (§§49-80 of the Board’s Decision).   The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

15.  I also do not regard the documents submitted by the Applicant at the hearing on 12 January 2026 to be relevant to the Leave Application.  This is particularly so given the Board’s finding that the Applicant’s claims that he will be killed by his father’s cousins if he returns to his country to be incredible.  The Applicant has not explained the relevance of the documents to his claims before the Board.

16.  In the premises, 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.

17.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

18.  In the premises, I make an order that the Form 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