Rahid Hussain Shah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3839/2019

[2025] HKCFI 1520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3839 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) Martin Wong:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 December 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 30 August 2017 refusing his non-refoulement protection claim. He named the TCAB as the proposed respondent.

2.I amended the Form 86 on my own motion to name the DOI as an interested party.

3.The Applicant requested for a hearing of this application and attended the same. When asked if he had anything to add he confirmed that he had not.

Background

4.The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis of a fear of harm due to threats made by people of an opposing religious group in Pakistan. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

6.In his affirmation filed in support of the Form 86, the Applicant only reiterated that it will not be safe for him to return to Pakistan and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.As can be seen from the TCAB Decision, all the available evidence was before the TCAB and after careful consideration and applying the correct approach [19-21], the TCAB came to the conclusion that although it was prepared to accept some of the Applicant’s allegations, the alleged risk was not made out [7-41].

8.The TCAB then proceeded to anaylse each of the four applicable grounds under the USM, applying the correct legal principles in each instance, and came to the conclusion that none was made out [42-84].

9.All in all, I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 12^th 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