Ali Amjad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1802/2020

[2025] HKCFI 4462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1802 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent, the DOI as a putative interested party and the TCAB Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 9 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (the “DOI”) dated 31 October 2018 refusing the Applicant’s non-refoulement protection claim and the decision of the Adjudicator of the Non-refoulement Claims Petition Office (who was also a member of the Torture Claims Appeal Board) dated 27 August 2020 (the “TCAB Decision”) affirming the DOI’s refusal. He named both the DOI and the Adjudicator of the Non‑refoulement Claims Petition Office as the proposed respondent and the DOI as an interested party.

2.As only the TCAB Decision is amenable to judicial review in these circumstances, I amended the Form 86 on my own motion accordingly, naming only the TCAB as the putative respondent and the DOI as a putative interested party.

3.The Applicant requested for a hearing of this application and attended the same. When asked if he had anything to add apart from the documents filed, he confirmed that he had not.

Background

4.The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that due to a land dispute, his rich and politically well-connected uncle had threatened to kill him on multiple occasions. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.In his affirmation filed in support of this application, the Applicant raised four “grounds on which relief is sought”. Only the first ground contains complaints against the TCAB Decision, while the remaining three go only against the DOI’s decision. The complaints against the TCAB Decision were that it was “not reasonable and unfair” and that the Adjudicator failed to give him sufficient time and chance to arrange evidence relevant to the appeal.

7.As recorded in the TCAB Decision, the Applicant indeed did not submit any documentary evidence for the appeal [10, 11]. There is no indication of any complaint by the Applicant before the TCAB that he was not given sufficient time to collate any evidence, or for that matter there was any further evidence that he wanted to submit. As indeed, there was a time gap of about 1.5 years between the time of the DOI’s refusal (November 2018) and the hearing before the TCAB (June 2020), during which the Applicant had ample time to arrange and collate any evidence that he thought would be relevant. It does not lie in his mouth now to say that he was not given sufficient time to do so.

8.Looking then at the substance of the TCAB Decision, the TCAB bore in mind the correct legal principles on assessment approach, including burden and standard of proof, and high standards of fairness [11-20], considered all the materials available before it [26-37], before finding that the Applicant’s factual allegations were not made out [38-41].

9.The TCAB then went on to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles, and concluded that none was made out [42-88]. The TCAB further found that state protection was reasonably sufficient and available to the Applicant [55-67], and that internal relocation was available to the Applicant [89-95].

10.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 29^th day of September 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