Khadim Shahzad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 220/2020

[2025] HKCFI 2064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 220 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 the Applicant being absent in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 21 January 2020, 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 10 January 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 18 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.The Applicant’s personal background, the incidents alleged by him in support of his non-refoulement claim that he would be harmed or killed in Pakistan by reason of his refusal to pay protection money, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein. 

Discussion

3.The Applicant is absent from the oral hearing.  I have proceeded to consider the merits of the present application based on the materials available before me (see Re Abdus Salam [2019] HKCA 1091). 

4.First of all, in view of the seriousness of the issues involved, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

5.As can be seen, after considering the totality of evidence:

(1)  the Board assessed that the Applicant had not established a well-founded fear of persecution on account of his religion and that he did not face any real risk of any form of harm in the remaining parts of Pakistan based on his accepted profile and the reliable country information.  

(2)  the Board found that the Applicant had not established any well-founded fear of persecution in Pakistan on account of his race, religion, nationality, membership of a particular social group or political opinion.

(3)  the Board also found that there was no real risk to the Applicant’s right to life or prospect that he would face torture or cruel, inhuman or degrading treatment or punishment.

(4)  the Board was not satisfied that there was any risk of torture to the Applicant.

(5)  the Board further highlighted that there was no claim of a consistent pattern of gross, flagrant or mass violation of human rights in Pakistan.

6.Based on these findings, and in light of the relevant law and legal principles, the Board refused to accept that there was any Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk, and consequently rejected the Applicant’s non-refoulement claim.   

7.The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation was primarily within the province of the Board.  The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision.  He has failed to identify any grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). He has also completely failed to meet the required standard of providing the Court with all relevant information (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

8.Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review.  The Court’s role in a judicial review is not to provide a further avenue of appeal (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).

9.For these reasons, the Applicant’s intended application for judicial review of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and no leave should be granted.   

Conclusion

10.I accordingly make an order that the Leave Application be dismissed.

Dated the 11^thday 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