Khan Asad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3773/2019

[2025] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3773 of 2019

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 18 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 13 December 2019 (the “Board’s Decision”).

2.The Applicant had requested an oral hearing for the application.  The hearing took place on 14 March 2025 and the Applicant attended in person.  At the hearing, the Applicant indicated that in 2020, his paternal uncle was murdered by Afzaal and Fahad (i.e. the Enemies referred to in the Board’s Decision).  The Applicant submitted a document in Urdu at the hearing in alleged support of the aforesaid (the “New Document”).  I shall deal with the New Evidence further hereinbelow.

Background

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

Discussion

4.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 of Immigration (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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

5.In the supporting Affirmation, the Applicant simply attached the Director’s decision dated 16 September 2019 (the “Director’s Decision”). In the Form, the Applicant stated a number of grounds in support of the Leave Application which can generally be summarized as follows:-

(1)  The Board’s Decision was unreasonable and unfair (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 Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).  The Applicant claimed that he will be killed if he is to be deported back to Pakistan.

(2)  In the Director’s Decision, 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 unfairly by placing too much reliance on the COI.  The Board had failed to take the Applicant’s personal background and experience into account.  Further, the Applicant claimed that although the Director had listed relevant COI which supported the point that the police in Pakistan would not be able to protect, the Director had failed to consider or give enough weight to such evidence.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument.  The Director showed an unfair attitude in dealing with the Applicant’s claims.  There was corruption and incompetence of the administration in Pakistan and the Applicant said there were various human rights organizations compiling reports on the matter which support his assertions.

(5)  The Director had failed to attain the high standard of fairness required by the Wednesbury test in the decision. 

(6)  The Board was “procedurally improper and/or unfair” when assessing whether to accept the Applicant’s explanation.  The Applicant claimed that the Board had unreasonably required the Applicant to respond to questions that he was not in a position to respond.  The Board had failed to take into account the nexus of the political parties and official corruption which exist in Pakistan, making “the persecution effectively persecution by the state”.

(7)  The Board’s Decision was irrational.

6.Some of the grounds provided by the Applicant are difficult to comprehend.  I shall however try my best to deal with all the grounds put forward by the Applicant.  I do not consider any of the Applicant’s contention meritorious, and shall briefly set out my reasons below.

7.To start with, the Applicant repeatedly complained about the Director’s Decision in the grounds.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, I shall focus on the complaints made in respect of the Board’s Decision.

8.In relation to point (1), the allegation that the Board’s Decision was unreasonable and unfair is vague assertion without particulars or elaboration. The Applicant has not particularized, let alone demonstrated, how the Board had acted unfairly or unreasonably as alleged.  The Board had duly considered the Applicant’s right to life under Article 2 of Section 8 of the HKBORO in the Board’s Decision (§§64-66 and 87 of the Board’s Decision).  I do not see any errors committed by the Board in this regard.

9.Further, the Board had also taken into account the Applicant’s claim that he would be killed by his “enemies” if he was to be deported back to Pakistan (§§8 and 42 of the Board’s Decision).  However, the Board considered that there was no, or no reliable evidence in support of the Applicant’s claim.  The Board was entitled to come to such finding based on the evidence (or lack of evidence) of the present case.

10.In relation to Point (2), in so far as the Applicant complained about the Director’s Decision, this ground is misconceived for the reason explained above. In so far as the complaint was against the Board’s Decision, the Applicant has failed to explain the relevance of the alleged “state acquiescence” in the circumstances of the present case.  It should be noted that the Board had already indicated that “acquiescence or failure of due diligence does not arise in the circumstance of this case” (§79 of the Board’s Decision) because there was no involvement of any public official and the alleged “enemies” of the Applicant were “non-state” actors (§§75-79 of the Board’s Decision).  I see no errors in the Board’s Decision in this regard and I reject the Applicant’s argument.

11.In relation to Point (3), the complaint of the Applicant is again vague and lacks particulars.  The Applicant is not alleging that the COI materials relied upon by the Board are untrue.  Accordingly, there is no basis for the Applicant to complain against the Board’s reliance of the COI materials.  As regards the personal background and experience of the Applicant, the circumstances of the Applicant had been duly considered by the Board (§§8, 26-28, 38-43 of the Board’s Decision).  The Applicant has failed to identify precisely what evidence (be it background or experience of the Applicant) which the Board ought to take into account but had failed to do so.  In so far as the Applicant complained about the Director’s Decision, the complaint is misconceived for the reason explained above.

12.In relation to point (4), again, in so far as the Applicant’s complaint was against the Director’s Decision, the ground is misconceived for the reason explained above.  In so far as the complaint was in respect of the Board’s Decision, the Applicant has failed to elaborate how the Board had allegedly demonstrated an unfair attitude towards him or in the process.  As regards the problems in Pakistan, the Board had duly considered all the COI materials available before the Board, and had dismissed the Applicant’s suggestion that the police did not or would not help him (§56 of the Board’s Decision).  I again see no errors in the Board’s analysis and finding based on the evidence of the case.

13.In relation to point (5), again, in so far as the Applicant’s complaint was against the Director’s Decision, the ground is misconceived for the reason explained above.  In so far as the complaint was in respect of the Board’s Decision, the criticism is vague and lacks particulars.

14.Points (6) and (7) are again general and vague assertions without particulars or elaboration.  The Applicant has failed to identify the precise question(s) which he alleged to be unfairly asked by the Board.  It is also unclear what the Applicant meant by “making the persecution effectively persecution by the State”.  If the Applicant meant that the alleged threat of his “enemies” should be regarded as persecution by the State, such arguments had already been rejected, and in my view, rightly rejected by the Board based on the evidence of the case (§§75 to 79 of the Board’s Decision).

15.At the hearing, the Applicant submitted the New Evidence in support of his alleged recent development of the situation after the Board’s Decision. Basically, the Applicant claimed that his life was still in danger as evidenced by the recent killing of his paternal uncle by his “enemies”.  I have considered the English translation of the New Document.  I do not regard the New Document supports what the Applicant said at the hearing.  In any event, I do not see the relevance of this document to the Leave Application.  I briefly set out my reasons below:-

(1)  First, the nature of the New Document is unclear.  What the Applicant has submitted is the printout of a photograph of a document.  I do not know whether this is an official document issued by the authority in Pakistan.

(2)  Second, whilst the New Document mentioned the murder of one Sabir Hussain, it is not clear the relationship between the victim and the Applicant. There is no information before me showing that the victim is the paternal uncle of the Applicant.  In fact, in the New Document, it was mentioned that statement was made by one Aamir Raheel, and the victim is allegedly Mr. Raheel’s paternal uncle.  I have no information before me as to who this Mr. Raheel is and his relationship with the Applicant (if any).

(3)  Third, according to the statement of Mr. Raheel as recorded in the New Document, the murder was committed under the direction of one Ali, son of Nisar.  There is no evidence before me as to who this Ali is.  It should be noted that the “enemies” of the Applicant are called Afzaal and Fahad (§8 of the Board’s Decision), and it is not clear the relationship between Ali and any of them, if any.

(4)  The New Document merely recorded what had allegedly happened based on the statement of Mr. Raheel and it is not clear whether any official investigation has been conducted and if so, whether it has been concluded.  I do not know whether there is any official finding relating to the alleged murder.

(5)  Given the uncertainty of the New Document, I am unable to see the relevance of the New Document to the Applicant’s claims before the Board.  I also regard it unsafe to rely on this New Document as the source and status of this New Document is unknown and unclear, and there is insufficient evidence explaining the information contained in the New Document.

(6)  For the reasons above, I refuse to admit the New Document.

16.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’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.

17.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.

18.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

19.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 2^nd day of May 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