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

HCAL 2449/2020

[2026] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2449 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) Vincent Lung:    

1.  Form 86 be amended, naming 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 a Form 86 filed on 16 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 10 December 2020.  There was no decision on such date; rather it was the date of the rejection letter enclosing TCAB’s decision dated 26 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 31 March 2020.  I regard this application as a challenge against the TCAB Decision.

2.I amend the Form 86 on my own motion to name the DOI as the putative interested party.

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

Background

4.The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he would be harmed or killed by his neighbour who had wished to purchase a piece of land belonging to the Applicant’s late father.  The Applicant’s father refused to sell and instead decided in 2018 to build a house thereon.  The Applicant alleges that the neighbour brought some armed men to disrupt the construction of the house, an argument ensued and both of the Applicant’s parents were shot dead.  The Applicant subsequently inherited the land.  The Applicant’s complaints to the local police were not entertained as the neighbour was rich and powerful.  When the neighbour knew that the Applicant reported the matter to the police, he sent 5 men to attack the Applicant and threatened to kill him if he would go to the police again or would refuse to sell the land. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  In his affirmation in support he merely stated that he was dissatisfied with the TCAB Decision and his life remained in danger.

9.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [23-26] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [27-38, 42] and properly considering Country of Origin information [39, 43], the Applicant’s allegations were insufficient to make out any of the applicable grounds [43-65].  The TCAB specifically found the Applicant to be an incredible witness, and accordingly there was no factual or evidential basis for the Applicant’s claims in the first place [44-51].

10.I further note that while the Applicant was late in bringing the appeal / petition to the TCAB, the TCAB considered the full circumstances and decided to extend time in favour of the Applicant [7-22].

11.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 8^th day of January 2026

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