Khan Babar v. Torture Claims Appeal Board
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HCAL 1438/2024 [2026] HKCFI 5667 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1438 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 27 August 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 19 August 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 February 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “Immigrction department rise of Hong Kong Special Administration Region” as the putative respondent, when the Board should be so named. He named the Director as the putative interested party, but spelt the Director’s name wrong. 4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”. The applicant’s case 5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 6.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, his life would be in danger due to a land dispute with his uncle Pervaiz Khan (“Pervaiz“), and Pervaiz wanted to kill him. Disposal on paper 7.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 8.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 9.The applicant did not advance any grounds for judicial review in Form 86, nor in his supporting affirmation dated 27 August 2024. Discussion 10.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 11.Thus, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 12.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 July 2024. The applicant was present and was thus given the chance to present his case to the Board in person. 13.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its analysis of the credibility of the applicant’s account were laid out in paragraphs 18 to 22 of the Board’s Decision, and it is not necessary to repeat the same here. 14.In gist, the Board found many aspects of the applicant’s claim to be lacking in detail, exaggerated, inconsistent with his account in other settings, and/or simply defying logic. By reason of the Board’s assessment of the credibility of the applicant’s account, the Board could only find the personal profile, education, work experience and his immigration record to be believable and rejected the remaining parts of his claim. The Board was not satisfied that the applicant had established his claim as to why he came to Hong Kong. The Board found that he had failed to establish any past experience of ill-treatment. Without any past experience of ill-treatment, or any credible evidence to show the enmity, the Board was not persuaded that there was any real risk of harm on the applicant if he was to return to Pakistan. 15.Despite the Board’s analysis of the credibility of the applicant’s accounts as summarised above, the Board had considered extensive country of origin information (“COI”) to assess the availability of state protection to the applicant in paragraphs 33 to 37 of the Board’s Decision. The Board was of the view that there was adequate state protection to protect the applicant from any risk he might have over being harmed by his alleged enemies, and that the applicant had avenues to seek redress if he was aggrieved with the treatment he might receive from the Pakistani police. 16.Moreover, the Board had considered the viability of internal relocation for the applicant despite its view that such assessment was not in fact necessary. The Board had given its reasons in paragraph 39 of the Board’s Decision for its conclusion that it would not be unduly harsh to expect the applicant to relocate to, say, Lahore, should he find it uncomfortable to stay at home. 17.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 18.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 19.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 20.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 21.For reasons aforesaid, the Leave Application is dismissed. Dated the 7th day of October 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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