Raza Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 3592/2019 [2025] HKCFI 2087 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3592 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
Observations for the Applicant: Introduction 1.By Form 86 (“Form 86”) dated 3 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 28 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 8 October 2018 (“the Director’s Decisions”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM). 2.In Form 86, the Applicant has erroneously named the Director as one of the proposed respondents and the Board as the proposed interested party. I have corrected these on my own motion. Background 3.It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, his case and claim, including the incidents alleged by him to show that he would be harmed or killed by his enemies in Pakistan due to the family vendetta, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, 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 4.I am not satisfied that the Applicant’s intended application for judicial review, challenging 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), and have therefore refused leave. 5.To begin with, it is essential for me to remind myself of the enhanced standard that should be adopted when evaluating the Board’s Decision given the seriousness of the issues involved (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). 6.Upon rigorous examination and anxious scrutiny, I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness. 7.The Board made factual findings regarding the Applicant’s non-refoulement claim after the hearing, based on his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc., and after considering all relevant materials, including his personal circumstances and the country of origin, etc. (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1). The Board rejected the following matters:
8.Based on these findings, the Board considered that the Applicant had not established complicity on the part of the state. The evidence was that the Applicant had not complained to the Pakistani police about the attack on him. The Board refused to find that, had the Applicant made a complaint, the Pakistani police would not have offered him reasonable protection. There was no objective basis for the Applicant to believe that his complaint to the police would have been futile. The Board did not accept that the Applicant would be unable to seek reasonable protection from the Pakistan authorities upon his return. There was a reasonable level of state protection available for the Applicant upon his return or in the near future. 9.The option of internal relocation was not unduly harsh or unreasonable for the Applicant. Rather, it was a safe and meaningful option for him. 10.Consequently, the Board rejected the Applicant’s claim for non-refoulement on grounds of Risk of Persecution, BOR 3 Risk, Risk of Torture, or BOR 2 Risk. 11.The Board was the primary decision‑maker, responsible for evaluating the Applicant’s claim and determining the appropriate weight to be given to the evidence. It is not the role of the Court to come to a fresh view on whether he would face any of the prescribed risks of harm. Unless and until he successfully shows that there was irrationality or such other public law ground in this case, the role of the Board should not be usurped (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, and Re Masoom Parvez [2018] HKCA 163). 12.However, in this case, the Applicant has not identified any errors of law, procedural unfairness, or irrationality in the decision of the Board. He is unable to demonstrate any grounds for the judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). There is little use for him to reiterate his case or argument before the Board, as the present application does not operate as an appeal or as an avenue to revisit arguments that had already been canvassed below. Conclusion 13.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed. Dated the 8th 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
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Cases cited in this judgment