Anwar Tariq v. Director of Immigration and Another

HCAL 1400/2020

[2025] HKCFI 5514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1400 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, substituting “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” in place of “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition”, substituting “The decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office” in place of the words “The Decision of the Adjudicator”, and naming the Director of Immigration as the Putative Interested Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Pakistan.  By a Form 86 filed on 6 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 6 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of two decisions of the Director of Immigration (“Director”) dated 6 October 2014 (“Director’s Decision”) and 18 May 2017 (“Director’s Further Decision”), and of a decision of the Torture Claims Appeal Board(“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 22 June 2020 (“the TCAB Decision”)[1].

2.I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.The Applicant sought an oral hearing of his application.  One was scheduled on 20 August 2025.  He was successfully contacted over the telephone by court staff on 18 August 2025 and informed of the date, time, and place of the hearing, but did not attend it as scheduled.  I hence consider that the Applicant has been informed of the hearing of his application and had chosen not to attend such, even though the Notice of Hearing issued by post on 30 July 2025[2] was returned to the High Court on 23 September 2025 (over a month after the date of the scheduled hearing) with the indication “No such person”.  In any event, by giving an apparently inaccurate and/or ineffective address to the court, he has failed to discharge his duty to give the court an address to which correspondence or notice can come to his attention in a timely manner (Islam Raja Rais v. Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439). In the circumstances I have dealt with his application on the papers.

4.I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondents and the proper Putative Interested Party, as well as the nature of the TCAB Decision.

Background

5.This is set out in the TCAB Decision, the Director’s Decision, and the Director’s Further Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by one Ashraf;

(2)  The claim was assessed on the grounds of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director in the Director’s Decision dated 6 October 2014, against which the Applicant filed a Notice of Appeal/Petition;

(3)  The Director by a letter dated 18 April 2017 invited the Applicant to submit additional facts relating to his non-refoulement claim on all applicable grounds, including in relation to BOR 2 Risk[6] in case he had omitted any relevant facts before because of any misunderstanding on what “all applicable grounds” meant.  The Applicant failed to do so by the extended deadline of 16 May 2017;

(4)  The Director then, by the Director’s Further Decision dated 18 May 2017, rejected the Applicant’s claim for non-refoulement protection under BOR 2 Risk and informed him that as his Notice of Appeal/Petition against the Director’s Decision was still pending, the arrangements in the Director’s letter dated 18 April 2017 would apply and he did not need to file a separate and further petition in respect of the Director’s Further Decision;

(5)  The TCAB/NRCPO held a hearing in relation to the Applicant’s non‑refoulement claim on 19 July 2018; and

(6)  The TCAB/NRCPO issued the TCAB Decision on 26 June 2020, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

6.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.The Form 86 does not identify any grounds of judicial review.  However, the Affirmation exhibited inter alia, and he apparent relies on, a single page document at Exhibit “TA-(4)” containing several “Grounds on which Relief is sought” (“Grounds”) all of which have been adapted almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

(1)  At Paragraph 1 of the Exhibit, “The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non‑refoulement claim.  He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported back to his country.”  (Ground 1)

(2)  Also at Paragraph 1 of the Exhibit, “In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.” (Ground 2)

(3)   Various grounds at Paragraphs 2 to 4 of the Exhibit which are all (given that they have been copied from other cases without due consideration to and application of the facts of the case) said to relate to the “Director’s Decision” or a single decision of the Director, but which in context I will consider as apparently being advanced in relation to both the Director’s Decision and the Director’s Further Decision (Grounds 3) and which I reproduce verbatim below:

“2. From the Director's Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant's case. This has indeed led to an unfair outcome of rejecting the Applicant's non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant's aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament to the applicant's assertions.  Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.  The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

10.However, given the appeal/petition to the TCAB/NRCPO, both the Director’s Decision and the Director’s Further Decision were (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  Hence Grounds 3 and all of the allegations therein must be dismissed, and when considering Ground 1 I ignore the portions that relate to the Director and/or the Director’s Further Decision as those are also not reasonably arguable and must be dismissed. 

11.The remaining portion of Ground 1 is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

12.Nevertheless, given the seriousness of the issues at hand, and notwithstanding the similarly vague and unparticularised nature of Ground 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds. 

13.The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, the four grounds under the USM including relevant principles in relation thereto, as well as other relevant principles as to assessment of the risk of harm, credibility, and the evidence (Paragraphs 1 to 24).

14.The decision-maker then moved on to the details of the Applicant’s case as set out in the NCF (Paragraphs 25 to 37) and in the two Interviews (Paragraph 38) before he outlined the Director’s Decision (Paragraph 39), and the Applicant’s case in the Notice of Appeal/Petition which was simply that he still needed protection as if he were refouled then Ashraf would kill him (Paragraph 41).  He also set out what had happened at the hearing, including that the Applicant had the benefit of an interpreter, and was advised by the TCAB/NRCPO of various salient matters including the onus on him, the ramifications of his position that he did not wish to answer questions or give evidence before the TCAB/NRCPO and to only rely on the material presented to the Director in the hearing bundle, and that he (after an adjournment to allow the Applicant time to consider the position) maintained such position save that he confirmed one or two matters relating to contact with Ashraf, the lack of problems with the Police and difficulties in leaving Pakistan, and as to internal relocation (Paragraph 42).

15.The TCAB/NRCPO then discussed the claim and set out its findings with regard to relevant principles and material before it.  It assessed the plausibility of the Applicant’s claims with regard to relevant matters and evidence before it and held that ultimately it did not accept that “any of the incidents described by him, allegedly leading to his departure from Pakistan had in fact taken place”, and that the Applicant had failed to substantiate his claim for protection on the grounds under the USM, even to the low standard required.  None of the four grounds for non-refoulement were hence established, the appeal/petition was hence rejected, and the Director’s Decision and Director’s Further Decision were hence confirmed (Paragraphs 43 to 52).

16.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  In particular:

(1)  I do not see that Ground 2 gives rise to any reasonable arguable public law grounds (including of any divergence from the requisite high standard of fairness) that would justify a grant of leave.  Firstly, and as a matter of context, the Applicant was legally represented before the Director, and hence had already had ample opportunity at that stage to arrange relevant evidence in support of his claim.  Secondly, and given that the hearing before the TCAB/NRCPO took place over 2 ½ years after the Director’s Decision, and over 2 years after the Director’s Further Decision, the Applicant had further ample time and opportunity to arrange (and to produce to the TCAB/NRCPO) all evidence relevant to his non-refoulement appeal/petition, and to prepare for his appeal.  Thirdly, there is no evidence that the Applicant complained about such issues (or indeed of any difficulty caused by such), or sought more time and/or an adjournment to arrange more evidence or to prepare for his appeal, whether at the hearing or at any stage prior to the TCAB Decision.  Indeed, and on the contrary, he specifically chose not to give evidence to the TCAB/NRCPO (except in relation to certain limited matters mentioned above).  Finally, and in any event, the Applicant has not provided any specifics of the evidence or matters relevant to his appeal that he claims he would have arranged, nor has he explained how such (or the apparent failure to allow him to “arrange” such) would have affected, impeached, or vitiated the analysis or conclusions reached in the TCAB Decision; and

(2)  I do not see any reasonably arguable public law error that would justify the grant of leave in relation to the TCAB/NRCPO’s process of assessment, reasoning, and findings regarding the evidence and credibility, which are matters primarily within the province of the decision-making body. In particular, I do not consider that in the circumstances of this case give rise to any reasonable argument that the claim was not (other than as alleged in relation to Ground 2) fairly processed, even bearing in mind the high standard of fairness. Here, the TCAB/NRCPO had explained to the Applicant that he bore the onus of adducing credible evidence to support his claim that there was a real risk of harm if refouled, and gave sufficient indication to him that it clearly had doubts about and might (absent oral evidence from him) reject as implausible the underlying factual claims made in the material in the Appeal Hearing Bundle[7] (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23-25, explaining Masud Md [2021] HKCA 1449). It is also obvious that the Applicant clearly appreciated and understood that notification and its ramifications, given that he decided (after having considered the decision-maker’s comments) to confirm certain matters as mentioned in the TCAB Decision and above. In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to such; and

(3)  There is hence, and also, no public law basis (including any Wednesbury unreasonableness or irrationality, insofar as such are alleged by the remnants of Ground 1) to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

17.Accordingly, there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

18.In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

Dated the 24^th day 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