Afzal Ahmed Alias Chaudhry Iqbal Warraich v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 522/2020

[2025] HKCFI 2202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 522 of 2020

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:

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 7 April 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 13 March 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 9 August 2018 (the “Director’s Decision”).

2.The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.In the Form, the Applicant has named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents. The Applicant has not named any interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

4.The Applicant requested an oral hearing for the application. The hearing took place on 6 May 2025 and the Applicant attended in person. At the hearing, the Applicant repeated his problems in Pakistan, and said both himself and his family were threatened and disturbed by his political enemies. The Applicant also claimed that he has medical issues (liver problem), and has medical appointment scheduled in December 2026 at Queen Elizabeth Hospital. He also claimed to have undergone surgery in respect of his leg 3 months ago. Apart from the aforesaid, the Applicant indicated that he had nothing to say in respect of the Leave Application.

Background

5.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[1]is included below for reference.

Discussion

6.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)

7.The supporting Affirmation did not contain any grounds in support of the Leave Application. In the Form, the Applicant provided a number of grounds which can generally be summarized as follows:-

(1)  The Board’s Decision was not reasonable and fair (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 the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).

(2)  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 was procedurally unfair by placing too much reliance on the COI materials but had failed to take the Applicant’s personal background and experience into account. Further, the Applicant claimed that the Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument.

(5)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had complied reports on the matter which supports the Applicant’s assertions.

(6)  The Board was procedurally improper and unfair when assessing whether to accept the Applicant’s explanation, and had unreasonably required the Applicant to respond to questions which 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 existed in the Applicant’s country, making the persecution effectively persecution by the state.

(7)  The Board’s Decision was irrational.

8.I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below. In so far as the Applicant’s complaints are made against the Director, I refer to my observation and ruling in paragraph 2 above. I shall further consider such complaints as if the complaints were made against the Board as well.

9.In relation to point (1) above, 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 correctly considered and applied the laws relating to Article 2 of the HKBORO (§§14-15, 105 of the Board’s Decision). There was no errors committed by the Board in this regard.

10.In relation to Point (2) above, the Board had concluded (correctly in my view) that there is no evidence of a real chance that the Applicant would be killed, harmed or tortured by a public official (§104 of the Board’s Decision). The Applicant has failed to demonstrate any error on the part of the Board in this regard. The Applicant’s alleged threat came from his political rival(s), rather than from the state or public officials. There is no evidence that the state was involved in any of the acts alleged by the Applicant.

11.In respect of Point (3) above, the Applicant has completely failed to demonstrate how the Board had allegedly acted unreasonably or in a procedurally unfair way. The Applicant has equally failed to identify precisely which COI materials the Board had allegedly placed too much reliance on and why. He has also failed to explain what personal background and experience of him he considered to be relevant which the Board had failed to take into account. On the question of whether the police in Pakistan would be able to protect the Applicant, it should be noted that the Applicant did report to the police in respect of the alleged attack to his car rental business and the police did arrest one Asjad Mali (§33 of the Board’s Decision). On another occasion, the Applicant said he did not report the threat to the police because he did not believe the authorities would protect him (§35 of the Board’s Decision). However, the Applicant did not provide any evidence in support of his belief. In any event, given the Board’s finding that there is no genuine and substantial risk of torture or harm (see for instance §108 of the Board’s Decision), whether there was sufficient protection by the police in Pakistan is not relevant. This is yet to mention that there is no evidence to show that the police in Pakistan cannot provide adequate protection to the Applicant if necessary.

12.In respect of point (4) above, the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight.

13.In relation to point (5) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. As regards the problems in Pakistan such as corruption, the Board had duly considered the COI materials available and acknowledged that corruption is common in Pakistan (§83 of the Board’s Decision). In fact, the Board had relied on such COI materials which point to the corruption problem in Pakistan to explain the various false identities used by the Applicant (§§77-86 of the Board’s Decision).

14.In relation to point (6) above, the Applicant has again failed to explain how the Board had acted improperly or unfairly in the procedure. It is also unclear what questions the Board had asked the Applicant which the Applicant considered to be unreasonable. I note that the Applicant did not raise any complaint at the hearing before the Board. As mentioned above, contrary to what the Applicant alleged, the Board had acknowledged that corruption is common in Pakistan. The Applicant has failed to explain precisely what “nexus of the political parties and official corruption” the Board had allegedly failed to take into account and its relevance.

15.Lastly, in relation to point (7), the allegation that the Board’s Decision is irrational is a bare assertion without particulars in support.

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.I also do not regard what the Applicant said at the hearing on 6 May 2025 assists the Leave Application. In so far as he repeated his problems in Pakistan, the same had been duly considered by the Board. I also do not regard the Applicant’s alleged medical conditions or appointment to be relevant to the Leave Application.

18.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.

19.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

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

Dated the 29^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