Wasif Iqbal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 419/2023 [2026] HKCFI 5153 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 419 of 2023 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) Lewis Law:
Observations for the Applicant: 1.By a Form 86 filed on 20 March 2023, the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“Board”) dated 10 March 2023 (“the Board’s Decision”). The Board’s Decision was made after an oral hearing on 16 December 2022 of the Applicant’s appeal/petition from the Director of Immigration (“DI”)’s first-tier decision dated 20 April 2022. A copy of the Board’s Decision can be seen by the following hyperlink[1]. 2.The Applicant is a Pakistani national. His claim for non-refoulment protection arose from a land dispute with his uncle and the uncle’s sons, for which physical violence was allegedly used. The Board was of the view that the chance that the Applicant would be harmed or killed if he returned to Pakistan was not high and imminent as alleged. The Board considered the Applicant’s risk not falling within the meaning of torture (including its extended meaning by State acquiescence), that there was nothing to show a risk of violation of the rights under Article 2 of the Hong Kong Bill of Rights (“BOR2”) or Article 3 of the Hong Kong Bill of Rights (“BOR3”), and that the claim did not fall within a Refugees Convention ground for persecution risk to become applicable. 3.In his Affirmation, the Applicant has set out a few grounds on which relief is sought. They are summarized as follows. First, the Board’s Decision was not reasonable and unfair as required by the Wednesbury test. Secondly, the Board failed to give him sufficient time and chance to arrange relevant evidence to his appeal. There are also a few challenges against DI’s reasoning and how DI reached the first-tier decision. 4.For the first ground, it is not reasonably arguable that the Board’s Decision was Wednesbury unreasonable. The decision plainly fell within a reasonable range of options open to the Board. 5.As for the second ground, the Applicant had over six months to prepare evidence in the period between the DI’s first-tier decision and the Board’s oral hearing. I find no reasonable argument that the Board conducted the appeal/petition proceedings unfairly. 6.As the DI’s first-tier decision has been substituted by the Board’s Decision, there is no reason why this Court should separately assess the legality and rationality of the DI’s first-tier decision. 7.It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). 8.I have considered the Board’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed. This application for leave to apply for leave is therefore dismissed. Dated the 10th 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
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Cases cited in this judgment