Imran Waseem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 801/2022 [2026] HKCFI 5029 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 801 of 2022 BETWEEN
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) Bonnie Cheng:
Observations for the Applicant: Introduction 1.By Form 86 dated 22 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 25 July 2017. 2.The Form 86 omitted to name the Director as putative interested party. I therefore amend the Form 86 on my own motion to name the Director as putative interested party. 3.An oral hearing, which was requested by the Applicant, took place before me on 3 March 2026. The Applicant attended in person, and submitted a letter written by his daughter, as well as certain identity and school documents, which the Court has considered. 4.It is noted the Applicant has sought an order preserving his anonymity in the written submissions attached to his affirmation. No justifications, however, have been given. The Court does not see any basis to grant an anonymity order in these proceedings. Background 5.The Applicant is from Pakistan. His background and the basis of his application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision. 6.In short, the Applicant claimed to be in fear of harm from PML(N) due to his brother’s past political involvement. Discussion 7.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me. 8.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17. 9.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17. 10.In the written submissions attached to the Applicant’s affirmation, the Applicant contended that the Board erred in law and/or acted in a procedurally unfair manner by wholesale dismissing his evidence based on vague assertions that these amounted to hearsay or speculation; that the Board did not appear to have considered any humanitarian grounds or ‘getting information in making [the] finding that [the Applicant’s account was “inherently implausible”’; and that the Board’s assessment of his credibility was procedurally unfair and/or irrational. 11.I have reviewed the Board’s Decision and I do not consider the Applicant to have made out his complaints. I do not otherwise find any error of law, procedural unfairness or irrationality to demonstrate a reasonably arguable case. The Board assessed the evidence in detail and gave adequate reasons for its decision. In particular, the Board considered the Applicant’s evidence incredible: §50. Notably:
12.For completeness, while the Court understands the Applicant wishes to remain in Hong Kong to stay with his daughter, this does not assist his application. Even where a family member of a person has a right of permanent residence in Hong Kong, the person (with no right to remain in Hong Kong) cannot rely on the family member’s rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§57, 65 and 69; Re Purisima Aida P [2022] HKCA 637 at §15. 13.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. Conclusion 14.I make an order that the Form 86 be amended as described above and that the Leave Application be dismissed. Dated the 7th day of September 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 |