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

HCAL 1393/2020

[2026] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1393 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

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

1.  The Form 86 be amended on the Court’s own motion by 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 citizen of Pakistan. By a Form 86 filed on 6 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 6 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) made on 24 June 2020 (“the NRCPO Decision”)[1], which was exhibited to the Affirmation.

2.The Applicant sought an oral hearing of his application and one was scheduled for 20 August 2025. However, two attempts by court staff to contact him, prior to the hearing, at the mobile phone number provided were unsuccessful as the phone number given had been suspended, and he did not appear at the oral hearing as scheduled. The Notice of Hearing issued to him by post[2] on 29 July 2025 was, after the scheduled hearing, returned undelivered by reason of there being “No such person”. He has hence 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). Indeed, the Immigration Department confirmed after the scheduled hearing that the Applicant had been granted stay in Hong Kong on 25 November 2020, and that no updated address could be provided. In the circumstances I have dealt with his application on the papers.

3.I will use the abbreviations and definitions from the NRPCO Decision unless otherwise specified herein, and have amended the Form 86 on my own motion to reflect the identity of the proper Putative Interested Party.

Background

4.This is set out in the NRCPO 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 Raza and Raza’s family;

(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 of Immigration (“Director”) in a decision dated 23 March 2015. The Applicant hence appealed/petitioned to the TCAB/NRCPO. That appeal/petition was dismissed, after an oral hearing, by the TCAB/NRCPO in a decision dated 2 February 2017 (“TCAB Decision”)[6];

(3)  The Director by a letter dated 24 March 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[7]. The Applicant failed to do so by the deadline of 7 April 2017, although shortly before that date he submitted a formal notification for protection. The Director then found, by a decision dated 2 May 2017 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim;

(4)  The Applicant then submitted a petition against the Director’s Further Decision. The NRCPO was constituted by the same adjudicator who had issued the TCAB Decision, and held an oral hearing on 1 June 2020 at which the Applicant gave evidence. The decision-maker handed down the NRCPO Decision dated 24 June 2020, in which it was decided that the Petitioner had not made out a case pursuant to BOR 2 Risk, the petition was dismissed, and the Director’s Further Decision was confirmed.

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 2012, 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 to apply 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 (Peter 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 Affirmation merely states that the Applicant is not satisfied with the decision of the “Immigration department” and that the Applicant’s life is “still in danger in [his] home country”.

9.However, not only did the Form 86 not seek leave in relation to the Director’s Decision or the Director’s Further Decision, but once the Applicant had pursued his appeal to the TCAB/NRCPO those decisions of the Director 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).

10.In any event, I do not see how the claims in the Affirmation amount to any effective grounds of judicial review. 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.

11.Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.The NRCPO set out the Applicant’s background, procedural and immigration history, and the details of the Applicant’s claims (Paragraphs 1 to 18). It then assessed the information/evidence given by the Applicant and concluded that the claim for BOR 2 Risk would be dismissed given the unreliability of such information/evidence put before it (Paragraphs 19 to 33). The decision-maker nevertheless went on to decide that the claim would still be dismissed even if the Applicant’s case were accepted, and explained why this was so given the decision-maker’s assessment of the risk of harm (as to which the decision-maker concluded that the risk of harm from Raza and his family members upon the Applicant’s return was extremely low and the Applicant’s feared ill-treatment was unlikely to materialise), and as to internal relocation (which the decision-maker found to be available and reasonable, for example to Karachi) (Paragraphs 45 to 51). BOR 2 Risk was hence not established, the petition was dismissed, and the Director’s Further Decision was confirmed (Paragraphs 52 to 56).

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 justify the grant of leave. This is especially so given the assessment, reasoning, and findings regarding the risk of harm and internal relocation, which are matters primarily within the province of the decision‑making body. Nor is there any public law basis to vitiate the decision-maker’s consequent conclusion regarding BOR 2 Risk.

14.I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

15.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

Dated the 21^st day of April 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