Shahzad Khurram v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1506/2020

[2025] HKCFI 5640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1506 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, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only 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 16 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 16 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 15 May 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.The Applicant sought an oral hearing of his application and one was scheduled for 21 August 2025. He was successfully contacted over the phone by 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 had been informed of the hearing of his application and chose not to attend such, even though the Notice of Hearing issued by post on 22 July 2025[2] was returned to the High Court on 18 August 2025 with the indication that it was “Unclaimed”.  I have hence dealt with his application on the papers.

3.I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent and the proper Putative Interested Party.

Background

4.This is set out in the TCAB 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 seriously ill-treated or killed by the PMLN;

(2)  The claim was assessed on the grounds of Torture Risk[3], BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6] and was rejected by the Director of Immigration (“Director”) in a decision dated 18 October 2018 (“Director’s Decision”);

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition, as to which a Notice of Hearing was issued by post to the Applicant on 4 November 2019, with the hearing scheduled to take place on 18 December 2019;

(4)  However, the Applicant failed to attend the scheduled hearing and on that date the TCAB/NRCPO was unable to contact him by phone.  The TCAB/NRCPO applied the procedure in s. 15 of Schedule 1A, Immigration Ordinance (CAP. 115) and, as it had received no response in relation to such from the Applicant within the time limit, proceeded to determine the petition/appeal in his absence and issued the TCAB Decision on 15 May 2020, in which it held that the Applicant had not made out any of the four grounds for non-refoulement protection and confirmed the Director’s Decision.

Legal Principles

5.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).

6.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).

7.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

8.The Form 86 does not contain any grounds for judicial review. The same goes for the Affirmation. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.Nevertheless, given the seriousness of the issues at hand, 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.

10.The TCAB/NRCPO outlined the nature of the matter before it with reference to the Director’s Decision, the four applicable grounds for non-refoulement relief, and relevant principles and issues in relation to such, including internal relocation and assessment of risk (Paragraphs 1 to 26). It then moved on to the Applicant’s background, including his procedural and immigration history leading up to the appeal and the contents of the hearing bundle, and its views as to the determinative issues in the case (Paragraphs 27 to 37). The Applicant’s factual case was then set out in detail, along with relevant COI (Paragraphs 37 to 57).

11.At Paragraphs 58 to 71, the TCAB/NRCPO then outlined its attempts to conduct the hearing and contact the Applicant, and how it followed the procedure in s. 15 of Schedule 1A, Immigration Ordinance (CAP. 115) that resulted in its decision to determine the matter in the Applicant’s absence. It accepted that the Applicant was a national of Pakistan. It also explained that while it was unable to seek clarification from the Applicant on several salient matters due to his failure to attend the hearing, ultimately after careful consideration of the evidence:

(1)   It was not satisfied that the Applicant held a significant or any significant or responsible roles in the PPP (and in particular that he held the position of general secretary in the PPP, or in the PMLN shortly before he had switched allegiance), such that he would be targeted by the opposing party for serious harm or death;

(2)   It did not accept, even if the Applicant had suffered ill-treatment during the relevant periods, that such was so serious to amount as persecution or that such past harm suggested a real chance of future harm in the present case. It had regard in particular, to the relevant factor of a delay of some 11 months in leaving the risk area and concluded that the Applicant did not face a real risk of serious harm or fatal harm in his home area; and

(3)   The Applicant did not face any real risk of harm from the Pakistani authorities now or in the reasonably foreseeable future if he were refouled to Pakistan.

12.The decision-maker also found that even if it were the case that the Applicant’s activities in the PPP meant he was targeted for the relevant harm by the PMLN, it was safe, viable, reasonable, and would not give rise to undue hardship for the Applicant to internally relocate to Karachi, Islamabad, or Lahore (Paragraphs 72 to 74). Accordingly, given the preceding analysis none of the four claimed grounds of risk had been established, and the Director’s Decision was affirmed (Paragraphs 75 to 79).

13.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. This is especially so as to the assessment, reasoning, and findings regarding the evidence and attendant facts, risk of harm, and internal relocation, which are matters primarily within the province of the decision-making body.  In particular, I consider that an objective reader of the TCAB Decision would appreciate that, and why, the decision-maker had considered (with regard to the substantial issues) that the material before it did not establish matters of fact relied on by the Applicant, and in any event the relevant risk of harm, and that the contents of the decision are also sufficient to enable the Applicant to consider the possibilities of administrative and judicial review (Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at §51; Melemoko Ndiala Saint Juste Seguy Lionel [2021] HKCA 609 at §5). Nor is there any reasonably arguable public law basis to vitiate the decision-maker’s conclusions and to justify the grant of leave in relation to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

15.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