Abbas Zahoor v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1120/2020

[2025] HKCFI 4629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1120 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 Putative Respondent; and

b.  the Director of Immigration be named as the 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 8 June 2020 (the “Form 86”), the Applicant sought 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 17 April 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named the “Secretary of Justice Appeal on behalf of the Director of Immigration” and himself as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (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 17 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis 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 here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant claims that he would be ill-treated or killed by Farman Ali and Zaheer Abbas (together, the “Adversaries”) who murdered the Applicant’s brother (the “Brother”) in 2004. The Applicant further claimed that the Adversaries were affiliated to the Pakistan People’s Party (“PPP").

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. 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.An applicant (even if acting in person) 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 (unreported, 22 December 2016) per Chow J (as he was then) at §142. In the Form 86 and the supporting affirmation, the Applicant did not provide any grounds in support of the Leave Application.

7.Notwithstanding the above, I have considered the Board’s Decision in detail. 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 or that it had taken into account irrelevant matters.

8.In my view, the Board’s Decision was comprehensive with adequate reasons provided, having considered the relevant legal principles (§§16-25) and analysed the salient events in detail (at §§1-14), the Board was plainly correct in rejecting the Applicant’s claim that he would be subject to a real risk of harm if return to Pakistan (at §47), in particular:-

(1)  There is no basis to intervene with the Board’s finding that the Applicant’s factual account was incredible, given the various inconsistencies and inherent probabilities in his evidence (§§29-34).

(2)  The Board noted that the Applicant has given inconsistent explanations as to the availability of documents which are said to support his claim. (§§35-36).

(3)  There was insufficient evidence to show that the Adversaries would still pursue the Applicant if he returns to Pakistan, especially when nothing had happened to his family members despite a lapse of 15 years since the murder (§43).

9.Having regard to relevant COI materials, the Board was entitled, and indeed correct, to find that state protection will be available in any event or that the Applicant can be relocated to other parts of the country:-

(1)  Pakistan is not a failed state. Even though police efficiency is not ideal, there are reasonable provisions for the protection of citizens. In the present case, the Applicant did not make a sufficient effort to seek assistance from the authorities and no reasonable explanation has been offered (§§50-52).

(2)  There was also no evidence to support the Applicant’s bare assertion that the Adversaries were sufficiently powerful to influence the police (§52).

(3)  No explanation has been provided by the Applicant as to why he could not be reasonably relocated to other parts of Pakistan. There is no evidence that the Adversaries would have the motivation or the means to pursue him across the country (§53).

10.Accordingly, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

11.At the Hearing, the Applicant indicated that he wished to submit further documents. Subsequent to the hearing and as directed by the Court[2], the Applicant on 29 July 2025 submitted the further documents which include the following:-

(1)  a statement by the Applicant where he basically repeated his factual account;

(2)  a post-mortem report and a complaint to the Pakistan police concerning the death of the Brother;

(3)  a letter written by the Applicant’s wife (who is apparently living in Hong Kong) together with medical diagnosis that the Applicant’s wife is suffering from moderate depression.

12.In my view, none of the further documents submitted has any bearing on this Leave Application:-

(1)  The gist of the Board’s finding of lack of real risk of harm was not based on disbelieving the Applicant’s account of the murder of the Brother but on the fact that it had happened over 20 years ago and there was no harm to the Applicant’s family. Hence, the new documents (which at the highest only go to show occurrence of the murder) cannot affect the Board’s finding that there was no real risk of harm.

(2)  Whilst this Court is sympathetic to the mental health condition that the Applicant’s wife is suffering from, it is difficult to see how that is relevant to the Applicant’s case. Even if the Applicant’s wife has the right of abode in Hong Kong, it is well established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§57, 65 and 69.

13.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.

14.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). In reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant with anxious scrutiny.

Conclusion

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

Dated the 6^th day of October 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