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HCAL 454/2021
[2026] HKCFI 1789
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 454 OF 2021
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BETWEEN
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Hazratullah Syed |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 February 2021”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The leave Application
1. By way of Form 86 dated 29 March 2021 and filed on 30 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
“The decision made on unknown date but notified to me, Applicant on 26th March 2021”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 23 February 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 July 2018 (“the Director’s Decision”). At the oral hearing before this court on 26 February 2021, the applicant confirmed that the Board’s Decision should be the subject matter of the Leave Application, and the date stated in Form 86 was only a mistake. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000454_2021_files/the_Board's_Decision.pdf
3. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the Director’ Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
4. In Form 86, the applicant named the Director as the putative respondent and did not name any putative interested party.
5. In fact, the Board should be named as the putative respondent and the Director should only be named as the putative interested party.
6. As aforesaid, the applicant had confirmed that the Board’s Decision should be the subject matter of the Leave Application.
7. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 23 February 2021”.
The applicant’s case
8. 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.
9. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being seriously harmed by members of the Pakistan Muslim League – Nawaz (“PML-N”) due to his work with and support of the Pakistan Tehreek-e-Insaf (“PTI”).
Oral hearing
10. The applicant requested for an oral hearing and his case was heard on 26 February 2026.
11. When this court asked the applicant for the grounds of his intended judicial review, he merely said that he was not educated and did not know the grounds for rejecting his appeal. He just wanted this court to look at his situation and the circumstances in his own country, as it was not safe for him to return.
Grounds for judicial review
12. 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).
13. The applicant did not give any ground for his intended judicial review in Form 86. In his supporting affirmation dated 29 March 2021, the applicant only stated that the respondent was in breach of procedural fairness in refusing his application. What he said at the hearing before this court did not amount to any valid ground for judicial review either.
Discussion
14. First of all, the applicant’s assertion in his supporting affirmation that the respondent was in breach of procedural fairness in refusing his application was without any particulars. The applicant did not specify how or why the Board was in breach of procedural fairness.
15. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
16. The applicant’s allegation at the oral hearing that it was not safe for him to return could not be a ground for judicial review. His danger had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
17. Thus, none of the grounds that were advanced by the applicant could establish any valid ground to challenge the Board’s Decision.
18. 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).
19. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
20. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 15 April 2020 and the applicant was present. Thus, the applicant was given the chance to present his case to the Board in person.
21. After due consideration of all the evidence, the Board was prepared to afford the applicant the benefit of the doubt and accepted that his evidence about what occurred to him in Pakistan was based on his personal experience and was a reliable account of events that actually occurred.
22. However, the Board found that the applicant and his family were not members but mere supporters of PTI. There had been a change of government in Pakistan after the 2018 election. PML-N was no longer the ruling party. PTI, the party which the applicant supported, won the election and was in national government. The applicant was only attacked once in his home area in the past, almost 6 years before the Board’s Decision. His former adversaries had not taken any adverse action against his family after his departure. There was no evidence to support that the adversaries would continue to pursue him, being a low level supporter of PTI, after so many years, and especially when PML-N had lost power after the change of government.
23. With PTI in control of the government, the Board found no evidence to support that people of PML-N could act with impunity. Reasonable state protection would be available to the applicant. Moreover, internal relocation was a safe and reasonable option for the applicant, being young with work experience and family support, to avoid his PML-N adversaries in his home area.
24. Thus, the Board found no substantial grounds to believe that the applicant would face a real risk of being subjected to torture, ill-treatment, arbitrary deprivation of life or persecution if he was to return to Pakistan.
25. The assessment of evidence, country of origin information and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. The applicant’s alleged danger had been fully assessed but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
26. 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.
27. 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
28. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 25 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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 on: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12660/18/7/410/P2458
Director of Immigration
Putative interested party’s ref. no.: QA T/C 2407/18 (formerly RBCZ/12444/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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