Shafiq Usman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3647/2019

[2025] HKCFI 2032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3647 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:

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) dated 6 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”) confirming the decision of the Director of Immigration (“the Director”) dated 9 August 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.The Applicant’s personal background, the facts alleged by him in support of his non‑refoulement claim that he would be harmed or killed by his wife’s family members 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

3.First of all, I have reminded myself of the enhanced standard to be adopted in scrutinizing the decision of the Board due to the seriousness of the issues at hand (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14).

4.As can be seen from the Board’s Decision, based on the findings of fact made in §§43‑55 and the application of the relevant law and legal principles, the Board concluded that there was no Torture risk (§§56-62), BOR 3 Risk (§§63-67), BOR 2 Risk (§§68-70), or Persecution risk (§§71-75).

5.The assessment and evaluation of the evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc. were primarily within the province of the Board.  The Applicant has been unable to show any errors of law committed by the Board, or that there was any procedural unfairness or irrationality in the Board’s Decision.

6.In this case, the Applicant has failed to identify his grounds for judicial review (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 his supporting affirmation, copies of the Hearing Bundle before the Board and the Board’s Decision.  He has clearly failed to meet the required standard of providing the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be performed (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).  The fact that he acts in person does not relieve him of the relevant duty, nor does it excuse his default.

7.The Court does not adjudicate the Applicant’s non-refoulement claim afresh in the absence of valid public law grounds.  As has been repeatedly emphasized in previous cases, the role of the Court in a judicial review is not to provide a further avenue of appeal.  Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review (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).

8.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). The requirement for leave to apply for judicial review should operate 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

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

Dated the 15^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