Case Document

100%Judiciary

HCAL 3580/2019

[2025] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3580 of 2019

BETWEEN
	Ali Zulfiqar	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and 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”) dated 2 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 22 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 27 June 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds other than torture risk (“the Grounds”).

2.On my own motion, I have amended Form 86 to correctly name the Board as the proposed respondent and the Director as the proposed interested party, and to identify the decision of the Board dated 22 November 2019 as the one subject to challenge rather than that of the Director.

Background

3.The Applicant’s personal background, the incidents alleged by him in support of his non‑refoulement claim that he would be killed by reason of a land dispute and money extortion in Pakistan, and the immigration and procedural history, etc. can be found in the Board’s Decision. It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.First of all, in view of the seriousness of the issues at hand, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14).

5.Based on the inconsistencies and discrepancies in the evidence, particularly regarding who allegedly wanted the land, the Board concluded that the Applicant was not a witness of truth. His claims about the land dispute and the issues with Waris, Naveed and their subordinates were found to be unreliable (see §55 of the Board’s Decision).

6.Accordingly, the Board refused to accept the fundamental basis of the Applicant’s claim that (see §57 of the Board’s Decision):

(1)  he was involved in any dispute over land which he allegedly purchased from Abdul Ghafoor;

(2)  either some unknown persons from outside his village wanted this land, or that Waris and Naveed wanted to buy it;

(3)  he was pursued by Waris and Naveed, together with their associates, for the land – either for themselves or on behalf of an unknown person for money;

(4)  he was repeatedly verbally threatened with death, if he failed to give them the land or pay the money they demanded from him;

(5)  he fled his home area to avoid Waris, Naveed, and their subordinates;

(6)  after he left his home area, Waris, Naveed and their subordinates were looking for him and made threats to his family, or that Waris contacted him in Hong Kong and threatened him; and

(7)  since his arrival in Hong Kong, Waris and Naveed had continued to visit his family to ask about his whereabouts.

7.Based on these findings of fact and the application of the relevant law and legal principles, the Board did not accept that the Applicant faced any form of harm in his country. The Board was not satisfied that (i) he was at any real risk of being subjected to torture or CIDTP if returned to Pakistan so as to constitute a breach of BOR 3, (ii) there was a real risk that he would be arbitrarily deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; or (iii) he had a well-founded fear of persecution for a Convention reason (see §§58, 60-63).

8.These matters were primarily within the province of the Board to determine, considering the evidence available and the applicable legal standards. The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision. He has failed to identify any grounds for judicial review in this case (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). It is inadequate for him to merely exhibit, in the supporting affirmation, a copy of the Board’s Decision, hoping that the Court would step in to adjudicate the matter afresh. The fact that he is acting in person does not relieve him of the duty to make full and frank disclosure (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

9.In the absence of sufficient public law errors or grounds being shown, the Court should not assume the role of the Board or intervene by way of judicial review. It is not the Court’s role in a judicial review to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

10.For these reasons, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).The requirement for leave to apply for judicial review serves to filter out unarguable challenges (see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A).

Conclusion

11.I accordingly make an order that Form 86 be amended as described and the Leave Application be dismissed.

Dated the 15^thday of May 2025

( Seline Sze )
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15/05/2025 Ali Zulfiqar Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/05/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12329/18/7/79/P2387 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1763/18 (formerly as RBCZ 2002715/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)