Khalil Ur Rehman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3772/2019

[2025] HKCFI 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3772 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 the Applicant being absent in open court;

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

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named 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 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 14 November 2019 (the “Board’s Decision”).

2.In the Form, the Applicant has named the adjudicator responsible for the Board’s Decision as the proposed respondent, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed Respondent and the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

3.The Applicant had requested an oral hearing for the application.  The hearing took place on 14 March 2025.  Notice of the Hearing was issued to the Applicant in advance.  Attempts were made to remind the Applicant of the hearing on 12 and 13 March 2025 by phone but in vain.  The Applicant did not attend the hearing.

Background

4.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

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

6.In the Form, no grounds were provided in support of the Leave Application.  In the supporting Affirmation, the Applicant said he was not satisfied with the Board’s Decision[2] and made a number of allegations in support of the Leave Application.  I shall deal with such allegations in turn.

7.First, the Applicant said that in the Board’s Decision, it was stated that he did not remember the address of the land and how far the land was from his home.  The Applicant claimed that this was not true as he had clearly said that “it is at the distance of about half an hour from my home”.  The Applicant also claimed that contrary to what the Board had stated in the decision, he was never asked about the photographs of constructions of the land.

8.The Applicant was apparently referring to §§31 and 33 of the Board’s Decision.  However, the Board was simply setting out the evidence gathered from the interview conducted with the Applicant in January 2017 by the immigration officer in those paragraphs.  I note that what the Board had stated in those paragraphs is largely consistent with what was stated in §58 of the Director’s decision dated 20 January 2017.  No complaint was made in respect of the statements made in the said paragraph of the Director’s decision in the Notice of Appeal filed by the Applicant before the Board.  Importantly and in any event, the Board’s finding on the claims relating to the land was not premised on the Applicant’s evidence (or lack of) relating to the photograph or distance of the land from his home (see §§104-114 of the Board’s Decision).

9.Second, the Applicant stated that he was the head of the family and he was the only one to take the decisions on behalf of the whole family.  The Applicant claimed that that was the reason why he was targeted by the enemies. The Applicant said his cousins were continuously forcing him (who allegedly had control of 50 to 60 votes) to support Pakistan Muslim League (Nawaz) (PMLN) which he did not want to.

10.Such contentions of the Applicant had clearly been considered and rejected by the Board (see §§97- 103 of the Board’s Decision).  This is essentially a finding of facts, and I see no errors committed by the Board in the analysis.

11.Third, the Applicant contended that Pakistan has a corrupt political system and PMLN still holds the influence in all the departments of Punjab province.

12.I do not see how this supports the Applicant’s Leave Application.  It should be noted that the Board had clearly taken the Applicant’s contention on board (for example see §56 of the Board’s Decision), and was prepared to accept that there is a level of police corruption and political influence in Pakistan (§§61 and 107 of the Board’s Decision).  The Board’s findings were made after taken into account such factors.  Accordingly, in so far as the Applicant contends that the Board had failed to take these matters into account, such contention must be rejected.

13.Fourth, the Applicant stated that state protection and internal relocation is not easy in Pakistan.  I again do not see how this can assist the Applicant’s Leave Application.  The Board did not find it necessary to consider the issues of state protection and relocation in the light of his findings against the Applicant (see §114 of the Board’s Decision).

14.Fifth, the Applicant criticized the Board’s finding that “it is difficult to accept that the police would not take any action against persons who had murdered his uncle” (§§61 and 107 of the Board’s Decision).  This is essentially a finding of fact and the Board was entitled to come to such finding based on the evidence and its analysis.  There was no errors committed by the Board in this regard.

15.Sixth, the Applicant repeated that corruption is very serious in Pakistan, and he cited the recent incident relating to a volleyball player as an example.  The incident cited by the Applicant lacks particulars and documentary evidence in support and I do not find it helpful at all.  As mentioned above, the issue of corruption had already been considered by the Board (§107 of the Board’s Decision) and the Board’s findings were made after taken into account such consideration.

16.Lastly, the Applicant criticized the Board’s reliance on the COI materials, saying that there was no real investigation in relation to such materials.  The Applicant further claimed that the data available in the internet is not true and do not reflect the true situation in Pakistan.   

17.Such criticism is vague and lacks particulars.  The Applicant has not identified precisely which COI materials are allegedly not accurate and which the Board had relied upon.  The Applicant had equally failed to explain and provide the basis in support of his contention that such COI materials are not true.  In fact, some of the COI materials actually support the Applicant’s contention that there is corruption problem in Pakistan.   This had been taken on board by the Board in considering the claim (§107 of the Board’s Decision).  The Applicant was given a fair chance to comment or respond to the COI materials in submissions (§89 of the Board’s Decision).  I therefore see no merits in the Applicant’s contention in this regard either.

18.In short, 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 was comprehensive with adequate reasons provided.  It 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.

19.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.

20.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

21.In the premises, I make an order that the Form 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