Ahmed Sagheer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3626/2019

[2025] HKCFI 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3626 of 2019

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.   Form 86 be amended, naming 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 Form 86 (“Form 86”) filed on 5 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 21 June 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.I have amended Form 86 on my own motion, correctly naming the Director rather than the Applicant as the proposed interested party.

Background

3.It is not necessary for me to reiterate the material facts of the present case, including the Applicant’s personal background, his case and claim and the facts alleged by him to show that he would be harmed or killed by the leader of ISIS and the followers in Pakistan by reason of his refusal to join them, and the immigration and procedural history, etc. which were set out in details in the Board’s Decision.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise indicated, I shall also adopt the Board’s abbreviations and descriptions herein. 

Discussion

4.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and have therefore refused leave.

5.The Applicant has failed to identify his grounds of judicial review clearly and succinctly in Form 86 as required: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.  He has also failed his duty to make full and frank disclosure in an ex parte leave application: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  In the supporting affirmation, he has merely expressed his “dissatisfaction” with the Director’s Decision, reiterating his alleged danger in Pakistan and nothing else.

6.The Court has repeatedly emphasized, specifically in the context of application of this nature, that its role is supervisory, meaning that it ensures the Board’s compliance with the public law requirements in coming to its decision on an applicant’s appeal.  The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board, and 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 Re Kartini [2019] HKCA 1022.  It is not for the Court to usurp the role of the primary decision makers in judicial review: 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, etc.

7.Bearing in mind the seriousness of the issues at hand, I have considered the Board’s Decision with rigorous examination and anxious scrutiny.  I am satisfied that the Board had properly assessed the Applicant’s evidence and found that he would not be subjected to any risk as alleged if he were to be returned to his country: see the Board’s discussion of the Applicant’s claim (§§12-22, 36-38), the evidence (§§23-30, 39, 40-56, 120-123), his case of fear of harm from ISIS (§§72-84), state protection (§§58-68, 85-87), internal relocation (§§88-90) and different grounds of Persecution Risk (§§95-96, 111-112), BOR 2 Risk (§§97, 113-114), BOR 3 Risk (§§97, 108-110) and Torture Risk (§§98, 102-107).

8.None of the materials provided by the Applicant demonstrates that there was any error of law or procedural unfairness in the Board’s Decision.  There is therefore no valid reason or basis for him to challenge the legality, rationality or fairness of the process below and the Board’s Decision.

Conclusion

9.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 9^thday of April 2025

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