Afzal Usman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 170/2023

[2026] HKCFI 5297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 170 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.  The Form 86 be amended by naming 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 7 February 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 6 January 2023 (the “Board”, the “Board’s Decision”).

2.In the Form, the Applicant named the Board as the putative interested party. I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.

3.In the Form, the Applicant raised various grounds in support of his Leave Application, see below.

4.The Applicant requested an oral hearing for the Leave Application, which took place on 17 June 2026 (the “Hearing”). At the Hearing, the Applicant said that he does not have anything to add orally.

Background

5.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

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

a)  It is trite law that the hearing before the Board is rehearing and the Board is required to consider the application afresh;

b)  The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

c)  The Board had unlawfully fettered its discretion in refusing the Applicant’s appeal;

d)  The Board had failed to meet the greater care and duty owed to the Applicant as a self-represented party;

e)  The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

f)  The “life and limb” of the Applicant is in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture is involved;

g)  In dismissing the Applicant’s appeal, there is no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supported documents or turned his mine to the ground under the consideration of the risk of violation of the Application’s right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (the “BOR 2 Risk”);

h)  The Board significantly relied on the source of news which is not officially recognised, or is simply hearsay;

i)  The Board relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in the Board making groundless speculations.  

7.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; Re Limbu Birkhaman [2019] HKCA 50 at para 11. 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.

8.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.

9.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-refoulement protection. During the hearing before the Board, the Board asked detailed questions regarding the Applicant’s family situation and the alleged attack that he suffered in Pakistan. However, the Applicant refused to answer the Board’s questions on several occasions, and the Board noted that the Applicant was uncooperative: see the Board’s Decision paras 39-70. The Board found that the Applicant was incredible and rejected his factual allegations: see the Board’s Decision paras 71-98. On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras 99-109. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.As to the grounds raised in the Affirmation:

a.  With respect to paragraph 6a, the Board had clearly considered and assessed the Applicant’s claims afresh, as shown in the Board’s Decision;

b.  For the reasons stated in paragraph 9 above, I do not consider the Applicant’s complaints in paragraphs 6b to 6g above to be valid;

c.  As to paragraphs 6h and 6i, the Applicant has failed to identify the alleged source of news or outdated cases which the Board has relied on. I do not consider the Applicant’s bare assertions under these complaints to have any merits.

11.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

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

Dated the 18^th 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