MIR FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1664/2020 [2025] HKCFI 5413 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1664 of 2020 BETWEEN Mir Farhan Applicant Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party 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 the documents and oral submissions by the Applicant in open court; Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung: (1) Form 86 be amended, 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 By a Form 86 filed on 17 August 2020 (the Form 86 ), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the TCAB ) dated 2 July 2020 with a reference number BOR 558/17/5/58/P161 (the 2nd TCAB Decision ), which affirmed the decision of the Director of Immigration (the ) dated 28 April 2017. The 2nd TCAB Decision only concerned the Applicant s claim under Article 2 of the Hong Kong Bill of Rights Ordinance ( BOR2 ). There was an earlier decision from the TCAB dated 9 February 2017 (the 1st TCAB Decision ) which affirmed the DOI s decision dated 8 April 2015 regarding the Applicant s claim under the other applicable grounds (there was an even earlier torture claim which was dismissed). The procedural chronology is set out in [1-7] of the 2nd TCAB Decision. I amend the Form 86 on my own motion to name the DOI as the putative interested party. The Applicant requested for a hearing of this application which he attended. Background The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed by his paternal uncle if he is to go back. The Applicant claims that his paternal uncle had already killed his father and the Applicant was at risk because the uncle would wish to obtain title of the Applicant s family home. The Applicant asserted that the local police were looking for him because the uncle had bribed them to instigate false cases against him. The Applicant s personal background and the relevant facts have been fully set out in the 2nd TCAB Decision, which can be viewed through a hyperlink . The 1st TCAB Decision was included as an attachment to the 2nd TCAB Decision. I shall therefore not repeat them. Discussion The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the 2nd TCAB Decision and the materials adduced by the Applicant. I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Applicant did not point to any error of law, procedural unfairness or irrationality of the 2nd TCAB Decision in the Form 86. In his supporting affirmation he merely asserted that he was not satisfied with the 2nd TCAB Decision because his life would still be in danger. He repeated the same point before me, adding that his 2 8-13] and found that on the basis of the same, applying also the correct legal principles in respect of BOR2 claims [14], the Applicant s allegations were insufficient to make out any of the applicable grounds [15-20]. The Applicant essentially repeated his case when compared to that presented which led to the 1st TCAB Decision [6-7, 15], and on that basis the TCAB was entitled to rely on its findings in the 1st TCAB Decision and conclude that there was no factual or evidential basis for the BOR2 claim (in particular when the TCAB held in the 1st TCAB Decision [28-33] that the Applicant s evidence was incredible). I further note that the TCAB held in the 1st TCAB Decision [38-42] that state protection and internal relocation were available on the evidence. All in all, I do not see any errors of law, procedural unfairness or irrationality in the 2nd TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant s intended challenge to the 2nd TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. Dated the 14th day of November 2025 (Gladys Lee) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 14/11/2025 Mir Farhan Applicant s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties solicitors 14/11/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 1401/15/4/93/P434 BOR 558/17/5/58/P161 Director of Immigration Putative Interested Party s ref. no.: RBCZ 9000529/17 (Formerly RBCZ2002754/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001664_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001664_2020_files/the_Board's_Decision.pdf PAGE \* MERGEFORMAT oboUboAo gdT,Z gd0h gd0h hT,Z gdU$ g_[O gdr= h/Pe h!83 h!83 h=FG h=FG h=FG h=FG h=FG h=FG h=FG h=FG |i|i|iVJ; h=FG h=FG h=FG hT,Z hT,Z hT,Z o[G[2 hn, hn, h=FG fS@1@ hn, D #v D #v [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/>% \BK> Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" SelectedStyle="\APASixthEditionOfficeOnline.xsl" StyleName="APA" Version="6"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{B79CB000-9761-41E2-BA1F-EBD58D3B0A84}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8