Ashraf Zeeshan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3489/2019

[2025] HKCFI 3638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3489 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:

1.  The Form 86 be amended on the court’s own motion.

2.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 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 / the Non-Refoulement Claims Petition Office (“Board”) dated 15 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 19 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/2019/HCAL003489_2019_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Director and the Adjudicator of the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that he would be harmed or killed by the father of the applicant’s girlfriend due to the father’s opposition to their romantic relationship.

4.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.

5.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 31 July 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

6.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.

7.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.

8.In his supporting affirmation, the grounds the applicant raised are mostly concerned with the Director’s Decision, complaining generally that :

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

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

(c)  There was no sufficient consideration of the COI.

9.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 say or supplement.

10.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, when assessing the applicant’s credibility, the Board found that the applicant’s story was internally consistent in relation to the dispute with the girlfriend’s father. The Board however found the objection from the girlfriend’s father was only a private matter, and that reasonable state protection was available. The Board also found that since the applicant had not suffered any physical or mental injury, the past ill-treatment had not reached the minimum level of severity. The Board therefore concluded that there was no real risk of harm. The Board made no finding on internal relocation. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.In the present case, despite the Board’s acceptance of the applicant’s account of events, its conclusion of the absence of risk of harm was premised on finding that reasonable state protection is available[4] by referencing various items of COI taken from the Director’s Decision.

12.The Board had taken into account the COI on the inadequate state protection based on the reports on the effectiveness of the Pakistani police and the independence of the Pakistani judiciary[5]. The information indicated that the lower levels of the Pakistani judiciary were not independent (without indicating whether the higher levels are independent), and that the effectiveness of the Pakistani police was low and state protection was limited. The Board also referred to other COI on the efforts having been made by the police to tackle police corruption. None of the COI indicated any improvement in judicial independence.

13.The COI that the Board referred to indicated that there had been limited efforts of improvement with Pakistani police. However their effectiveness remained low, and state protection was limited. The lower levels of the Pakistani judiciary were not independent, and that there was no clear indication as to whether the upper levels of the Pakistani judiciary were independent. In concluding that there was available reasonable state protection, the Board did not explain the basis upon which it reached the conclusion despite the many defects existed with the police and the judiciary. Since the Board did not challenge the applicant’s evidence that the girlfriend’s father was a politically powerful figure, it is of fundamental importance for the Board to properly assess reasonable availability of state protection as to whether the applicant would face the risk of harm from the girlfriend’s father who had threatened to kill him if he were located.

14.The Board however also seems to take failed to demonstrate that it had properly and independently assessed the COI. This together with the Board’s failure to provide the basis for its conclusion on state protection arguably has rendered the Board’s Decision irrational and unreasonable, and is tainted with procedural unfairness : Asif Muhammad et al v Torture Claims Appeal Board [6] and A, B, C, D and E v Torture Claims Appeal Board [7] .

15.Further, the Board did not consider the viability of internal relocation, which in the present case is arguably relevant. At [82] of the Board’s Decision, the Board found that there was no objective evidence to support that the girlfriend’s father represent the government to locate the applicant. In coming to this finding, the Board appears to have overlooked the evidence that it has set out in [9] of the Board’s Decision that the girlfriend’s father and his followers informed the applicant’s boss that “they could locate him and kill him”. This together with the fact that the father appeared to be powerful politically, the reasonable viability of internal relocation would be a highly relevant consideration: see Asif Muhammad (supra.) at [24]. In the circumstances, the Board’s failure to consider internal relocation is arguably unreasonable.

16.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

17.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

19.The Form 86 be amended on the court’s own motion.

20.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

21.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 22^nd 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