Asif Nazir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1075/2020

[2025] HKCFI 3237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1075 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) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the only Putative Respondent; and

b.  the Director of Immigration be named as the only 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 2 June 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 29 May 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as proposed respondents. 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 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 16 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis and history 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 herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that he will be harmed or killed if he returns to Pakistan, especially from an individual known as “Mustaq” who was in charge of the factory where the Applicant used to work. The Applicant claims that he was targeted by Mustaq (a Muslim) for his Christian faith.

Discussion

5.The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny 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, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

6.It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

7.It is evident that the Applicant has failed to do so. In the Form 86 and the supporting affirmation, the Applicant did not provide any grounds in support of the Leave Application.

8.At the Hearing, the Applicant handed up set of further submissions in English which was purportedly prepared by a friend of the Applicant on his behalf (the “Submissions”). However, after questioning the Applicant about the contents of the Submissions, it does not appear to me that the Applicant fully understood its contents and I am not satisfied that the Submissions were prepared entirely in accordance with the Applicant’s instructions.

9.In the Submissions, apart from repeating earlier arguments before the Board that he is subject to great danger from persecution by Muslims in Pakistan and he cannot be relocated to other city, he also made the additional complaint that he was provided with an interpreter of the Muslim faith at the hearing before the Board notwithstanding the Applicant’s request otherwise.

10.As clarified with the Applicant at the Hearing, the gist of his additional complaint is that the Muslim interpreter failed to interpret his account of persecution by Mustaq to the Board because of their different faiths.

11.In my judgment, the Applicant’s complaint about the interpreter which was raised at the last minute is groundless:-

(1)  This complaint was not raised in the Form 86 or the supporting affirmation.

(2)  The Applicant has provided no evidence to support his bare assertion that the interpreter had deliberately breached his professional duties and duties to the Board which is a serious allegation.

(3)  In any event, the complaint has no substance. One only need to look at the Board’s Decision, it is clear that the Board had no difficulty understanding the gist of the Applicant’s factual case and had dealt with his evidence on his alleged conflict with Mustaq in great detail. As repeatedly noted in the Board’s Decision, the Applicant’s factual account was also set out in his Non-refoulement claim Form (§§10-72).

12.At the Hearing, the Applicant also told me about alleged attacks against Christians in Faisalabad and “Jaranwalla”[2] in about 2023 to 2024 where churches were burnt down and Christian people being beaten up. I am not prepared to accept this account given it was only the bare assertion of the Applicant without any supporting documents. I note that these events took place subsequent to the Board’s Decision. In any event and taking at its highest, they only amount to general COI information and no suggestion has been made as to how these attacks would give rise to a personal risk of harm to the Applicant.

13.Notwithstanding the above, I have reviewed 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.

14.In the Board’s Decision, the Board has applied the correct legal principles and considered and analysed the relevant evidence in a comprehensive manner. In particular, the Board was entitled to find that there is no evidence of any real risk of serious harm for the following main reasons:-

(1)  Having questioned the Appellant in detailed as to his factual account, the Board found that there were significant discrepancies in the Applicant’s factual account of critical events which formed the basis of his claim (§§109, 112, 114-115 of the Board’s Decision).

(2)  The Board also rejected the Appellant’s contention that it was generally unsafe for Christian to be living in anywhere in Pakistan. In finding that there was no personal risk to the Appellant, the Board noted that in fact the Applicant’s family members (who were Christians according to the Applicant) remained living in Pakistan without any harm (§§110-111 of the Board’s Decision).

15.I am satisfied that the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

16.In short, 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.

Conclusion

17.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 1^st day of August 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