Ahmed Naveed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3463/2019

[2025] HKCFI 2774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3463 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 Levy:

The Leave Application be dismissed

Introduction

1.By prescribed Form 86 filed on 22 November 2019, 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/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 20 November 2019 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 8 January 2019 (“Director's Decision”) rejecting the applicant's non-refoulement claim.

2.On 18 June 2025, the applicant filed an affirmation applying for withdrawal of the Leave Application as well as a “Notice of Discontinuance”. In the circumstances, this court will dispose of the Leave Application on paper

Background

3.The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.The applicant is a national of Pakistan. On 22 January 2015, he was arrested by police for illegal remaining, and was referred to the Immigration Department. The applicant claimed that he sneaked in Hong Kong on 21 December 2014 after having arrived in Guangzhou on 28 July 2014. On 24 January 2015, he lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by the family of his girlfriend.

5.The applicant stated that since 2013, he started a courtship with his girlfriend who came from a very rich and influential family. The family disapproved of their relationship, and assaulted the applicant on two occasions in 2014. As the applicant was afraid that the girlfriend’s brothers might cause him harm, he decided to flee his home country.

6.The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.

7.In the Board’s Decision, the Board stated that the applicant had refused to answer questions that the Board asked him. After having referred to the relevant law in a claimant’s refusal to answer questions, the Board stated that it would not draw any negative inference on account of the applicant’s refusal to answer questions. After having evaluated the applicant’s evidence individually and cumulatively, as well as considered his personal circumstances, the Board did not consider that the applicant faced a real risk of harm from the girlfriend’s brothers. The Board further found that state protection and internal relocation were both reasonably available. The Board dismissed his appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

8.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.The applicant set out a number of grounds in his Form 86 in support of the intended challenge. However, most of the grounds but only three were concerned with the Director’s Decision. For the grounds concerning the Board’s Decision, the applicant generally alleged unreasonableness, procedural unfairness and irrationality without condescending to any particulars. However, in the Form 86 or otherwise, the applicant was not able to say as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.

10.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion in finding that there was a lack of risk of harm from the girlfriend’s family, and that the applicant failed to discharge the burden of proving the asserted fears and risks.

11.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

12.In the affirmation filed on 18 June 2025, the applicant stated that he no longer required any asylum protection as he had been granted a residence permit in Finland. A copy of the residence permit card was also exhibited to his affirmation.

13.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140

Order

14.The Leave Application be dismissed.

Dated the 8^th day of July 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