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HCAL 1660/2021
[2026] HKCFI 3746
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1660 OF 2021
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BETWEEN
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Ali Mohsin |
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”, and the name of the putative interested party be amended to “Director of Immigration”.
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 and filed on 7 December 2021, 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 29 October 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001660_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 21 November 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and “NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondents, and himself as the putative interested party, when only the Board should be the putative respondent, and the Director should be the putative interested party.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court 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
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being harmed or killed by the brothers of his girlfriend named Saira and other Pakistan Muslim League (N) (“PML(N)”) people connected to Saira’s family, as they objected to the applicant’s relationship with Saira. Moreover, the applicant’s father supported the Pakistan Muslim League (Q) while Saira’s family supported its rival party PML(N). An additional problem was that the applicant and Saira were of different caste, namely Jatt and Rajput respectively.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 25 June 2026.
9. When this court asked the applicant for his grounds of judicial review, he merely said he had a fight with his enemies in Pakistan and they were waiting for him to go back to Pakistan. His enemies assaulted his elder brother last year, and hence he stayed in Hong Kong. He was married in Hong Kong with a son and was applying for a dependent visa. If his visa was approved, he would bring his wife to Pakistan. He was trying to finish the dispute with his enemies in Pakistan but his enemies were asking him for money. He did not have enough money to pay them, but if he had enough money, he would pay them. Therefore, the applicant asked for more time to remain in Hong Kong.
Grounds for judicial review
10. 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).
11. The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 7 December 2021. In the said affirmation, he only stated that he was not satisfied with the decision of the Immigration Department, and his life was still in danger in his home country.
12. As said, at the oral hearing, the applicant only mentioned that his enemies were waiting for him to return to Pakistan, he was married in Hong Kong with a son, and was applying for a dependent visa. He added that his elder brother was assaulted by his enemies, and that the enemies asked him for money.
Discussion
13. First of all, the applicant’s problems with his enemies had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
14. His new claims at the oral hearing, namely that his elder brother was assaulted by his enemies, and that the enemies asked him for money were not presented before the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Thus, these new matters cannot amount to any valid grounds for the intended judicial review.
15. Further, the fact that he was married to a Hong Kong resident is not a ground for judicial review either. As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.
16. Thus, none of the matters that were raised in the applicant’s affirmation or at the hearing before this court constitutes a valid ground in challenging the Board’s Decision.
17. 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).
18. Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
19. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 October 2021. Thus, the applicant was given the opportunity to present his case to the Board in person.
20. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
21. The Board had laid out its assessment of the applicant’s claim and its conclusion of the applicant’s evidence in paragraphs 38 to 50 and paragraphs 51 to 63 of the Board’s Decision respectively, and it is not necessary to repeat the same here.
22. In gist, the Board found that the applicant had only made bare assertions and provided no objective proof of the same. Even taken the applicant’s claim at its highest, the Board considered that it amounted only to a conflict with another family over his relationship with a daughter and sister. While the Board considered the applicant’s evidence on his affair with a girl from a rich family to be so unlikely as to be barely credible, the Board still proceeded to consider the claim on the basis that the applicant offended a local family and needed to leave his home area for his own safety.
23. As the applicant claimed to be a rickshaw driver earning as little as just about HKD 10 per day, the Board considered it far-fetched that the level of threat to the applicant would justify the payment of a huge sum to depart Pakistan to come to Hong Kong, when the logical and viable alternative was for the applicant to simply move elsewhere in Pakistan.
24. The Board also conducted a search on the website of the Provincial Assembly of Punjab from 2008 to the present day for the district of Attock and against the Member’s Directory for those years alphabetically, and could not find any reference to the person named by the applicant as a Member of Provincial Assembly who was associated with Saira’s family.
25. Moreover, the Board had laid out its full reasons in paragraphs 64 to 69 of the Board’s Decision for its finding that the applicant could relocate and earn a living within Pakistan to avoid any perceived harm from Saira’s family. In gist, the Board found that the applicant’s enemies were non-state actors and the applicant failed to prove that Saira’s family had the wealth and influence to trace the applicant were he to relocate outside his local area.
26. Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.
27. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
28. 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 error 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.
29. 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
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 15th day of July 2026
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(Gladys LEE)
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 his 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: 15/07/2026
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: 15/07/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14664/18/12/21/P2924
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4252/18 (Formerly RBCZ 10341/18) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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