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

HCAL 265/2022

[2026] HKCFI 1169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 265 of 2022

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) Calvin Cheuk:    

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and 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 26 April 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 15 March 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 26 June 2020 (the “Director’s Decision”).[1] 

2.The Applicant named both the Adjudicator of the Non-refoulement Claims Petition Office and the Director as the proposed respondents, and the Board as the proposed interested party.  Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.The Applicant requested an oral hearing for the application.  The hearing took place on 2 February 2026 and the Applicant attended in person.  

Background

4.The Applicant’s background, the basis of the Applicant’s claims and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[2]

Discussion

5.The applicable legal principles in this area are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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.In the Form and the supporting affirmation, the Applicant in summary contended that:

(1)   He did not agree with the Board’s Decision, and the Board made its decision on the basis of another applicant.

(2)   He was tortured in Pakistan physically and mentally.  His side won the case in all courts but his opponent still prevailed, and assaulted the Applicant with the help of the police.  He could not relocate in Pakistan because there would be a lot of expenses.  He also did not have the skills or education to start a job in a new city.  His kids were in the house of his mother-in-law, who could not afford his kids.

7.At the hearing, the Applicant indicated that he had a wife and a child in Hong Kong.  His wife’s ex-husband threatened to kill the child if his wife went back to Indonesia.  He needed more time to apply for documents to bring his wife and his child to Pakistan.

8.I do not consider any of the Applicant’s contentions meritorious.

9.In relation to the contention at [6(1)], the Applicant only made vague assertions without particulars.  The Applicant has not identified, let alone demonstrated, any errors of law, procedural unfairness, or irrationality in the Board’s Decision.  More specifically, I do not accept that the Board made its decision on the basis of another applicant.

10.So far as the contention at [6(2)] is concerned, the Applicant merely sought to re-argue a case that was not accepted by the Board (see, in particular, [111]-[156] of the Board’s Decision).  

11.As for the contentions at [7], they are not matters which may assist the Applicant’s application.  

12.In the present case, the Board carefully considered the Applicant’s evidence.  A hearing was conducted on 12 October 2020.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims.  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

13.As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence available to me.

Conclusion

14.For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

Dated the 10^th day of March 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