Mahfooz Tayyab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 403/2020

[2025] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 403 of 2020

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 Levy:

The Leave Application be dismissed

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 13 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 September 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000403_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that he would be harmed or killed by a village councilor, a member of Pakistan Tehreek-e-Insaf (“PTI”), and his associated PTI supporters.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 21 May 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

6.In his Form 86, the applicant stated a number of grounds for the judicial review, which can be summarized as follow.

(a)   The Board’s Decision was unreasonable and unfair;

(b)   Insufficient importance or weight was given to state acquiescence;

(c)   Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)   The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

7.However, the applicant did not provide any particulars in support of his grounds.

8.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that he had nothing to add.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board rejected the claim because it had doubts as to whether the PTI councillor attacked the applicant on account of his claimed support of the Pakistan Muslim League (N) (“PML (N)”). In particular, the Board doubted whether he was a PML(N) supporter since he seemed to know little about the PML(N)’s candidates, rallies and poster campaigns in his area.  In any event, assuming the applicant’s case was truthful, the Board found that there was no real risk of harm because reasonable state protection was available and internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  Most of the grounds the applicant provided in the Leave Application are neither concerned with the Board Decision nor do they contain any specific assertions. Despite a hearing having been held on his request, the applicant was unable to provide any grounds in support of the Leave Application. In the circumstances, I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

11.The Leave Application be dismissed.

Dated the 4^th day of June 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