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

HCAL 1309/2021

[2026] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1309 of 2021

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) Sabrina Ho:

1.  Form 86 be amended by naming the Torture Claims Appeal Board / Non refoulement Claims Petition Office as the only 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 17 September 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against “the Decision of the Director of Immigration dated 14 September 2021”.  The decision dated 14 September 2021 is in fact the decision by the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”, the “Board’s Decision”).

2.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision and made clear that his Leave Application concerns the decision by the Board dismissing his appeal.

3.In the circumstances, I take it that the Applicant intends to seek leave for judicial review against the Board’s Decision in this Leave Application.

4.I will amend the Form 86 on my own motion to name the Board as the only putative respondent and the Director of Immigration (the “Director”) as the putative interested party.

5.The Applicant requested an oral hearing for the Leave Application, which took place on 23 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that he has nothing to add.

Background

6.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

7.In the Affirmation, the Applicant raised various grounds in support of his Leave Application, I will summarise them below:

a.   The Applicant is a Pakistani national and he left Pakistan in order to save his life. He is in genuine fear of his life. The current situation of Pakistan is worse than before. People kill their kids and there are robbery and other problems;

b.   The Applicant’s opponents would not let him alive until he gives the land to them because the price of the land has doubled. He has talked to the villagers and offered to give half of the land to the opponents. The villagers had to persuade the opponents to accept the offer. The Applicant needs time to solve his problem.

8.The relevant legal principles are well established.  The Court’s role 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 scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state 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 para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

9.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

10.I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  The Board rejected on the facts that there was any land dispute between the Applicant (or his mother) with Tahir Khan (“Tahir”) and Gul Shad (“Gul”) and their respective families.  While there was a disagreement between the parties as to the price which Khan and Gul should pay to acquire the land, that only resulted in mild fights between them.  There is no evidence to show that Tahir and Gul intended to cause more serious pain and suffering to the Applicant.  Further, the Board took the view that reasonable protection and assistance from the Pakistani authorities are available to the Applicant.  On the above bases, the Board rejected the Applicant’s appeal: see the Board’s Decision paras. 48-69.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.As to the Applicant’s allegation in the Affirmation, as mentioned above, the issues concerning the disagreement over the land has been considered by the Board before it reached the Board’s Decision.

12.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

13.For the reasons stated above, I will dismiss the Leave Application.

Dated the 16^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