Abideen Malik Zain Ul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1771/2020

[2025] HKCFI 5368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1771 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) Teresa Wu:

1.  Form 86 be amended, adding the Director of Immigration 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 4 September 2020, the Applicant seeks 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 12 August 2020 (“the Board’s Decision”), which affirmed the Director of Immigration (“the Director)’s rejection of his claim for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (USM) on 23 September 2019 (“the Director’s Decision”).

Background

2.The Applicant’s personal background, together with the incidents alleged in support of his claim that he would be ill-treated or killed by the brother of his ex-girlfriend, Umar, and his friend, Raja, if returned to Pakistan, as well as the relevant immigration and procedural history, were fully set out in the Board’s Decision.  It is unnecessary to repeat them here.  For completeness, reference may be made to that Decision, the hyperlink to which is included below[1].  Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.The Board clearly noted the Applicant’s claim that his life was in danger in Pakistan due to his love affair with a girl.  At the commencement of the hearing before the Board, the Applicant confirmed the truth and correctness of all the evidence contained in the Hearing Bundle.  He further confirmed that he was ready to pursue his appeal, that he had no further documents or information to add in support of his claim, and that he understood the applicable grounds upon which the Director had rejected his non-refoulement claim.  All of the evidence adduced was duly considered by the Board.

4.The Applicant also confirmed to the Board that his fear was that his ex‑girlfriend’s brother, Uma, and the brother’s friend, Raja, would kill him.  On the basis of the evidence, the Board found that this aspect of the Applicant’s claim amounted to “a bare assertion”. The only aspect of the claim that could be examined through available material was the political dimension.

5.In these circumstances, the Board proceeded to assess both the internal and external credibility of the Applicant’s account.  Internal credibility was examined by reference to matters such as the consistency between his oral testimony and his written statements.  External credibility was assessed by reference to the consistency of his claims with objective and reliable sources of COI information, as well as the generally known facts about Pakistan and other evidence.

6.The Board observed that the Applicant had made various assertions but provided no objective proof of those assertions apart from a political poster.  For this reason, the internal credibility of the claim and its plausibility in light of what is known about Pakistan were “crucial”. Against this background, the Board reminded itself that the existence of inconsistencies in the Applicant’s account may not necessarily be fatal to a claim, but nonetheless weighed them carefully in its overall assessment.

7.Having considered all of the evidence, the Board was not satisfied that the Applicant would be killed, harmed, or tortured by a public official, and therefore his claim under the head of Torture Risk must fail.  The Board also found no evidence that the Applicant had committed any criminal offence that would expose him to capital punishment in Pakistan, and accordingly his claim under BOR 2 failed.  As for BOR 3, the Applicant did not establish that he faced a genuine and substantial risk of torture or CIDTP.  Finally, in relation to Persecution Risk, the Applicant provided no evidence of persecution under any of the Convention grounds, and this claim likewise failed.   

8.The Applicant has not identified any valid public law grounds challenging the legality, rationality, or procedural fairness of the Board’s Decision.  Neither am I satisfied that there was any such error of law, irrationality, or procedural unfairness, having specifically reminded myself of the need to apply the enhanced standard of scrutiny required by law in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524at §14).  The Board, acting in its capacity as the primary decision-maker, evaluated the evidence, assessed the risk of harm, considered the COI information, and took into account the availability of state protection and internal relocation before making determinations within its jurisdiction.

9.In the absence of any public law grounds being established, it is not for the Court to interfere with the decision of the Board.  Judicial review is not intended to serve as an additional avenue of appeal for the Applicant (see 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; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

10.For the reasons above, I am not satisfied that the Applicant’s proposed judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  I have therefore refused leave.

Conclusion

11.In light of the foregoing, the Leave Application is dismissed.

Dated the 10^thday of December 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