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HCAL 1985/2025
[2025] HKCFI 6262
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1985 OF 2025
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BETWEEN
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Kharotai Hayat Gul |
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 “Director of Immigration” be added as the putative interested party.
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 31 August 2025 and filed on 2 September 2025, 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 20 August 2025 (“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/2025/HCAL001985_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 30 May 2025, which rejected his non-refoulement claim.
Amendments
3. The applicant named the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party in Form 86.
4. In fact, the adjudicator was determining the applicant’s appeal/petition in his capacity as a member of the Board. Hence, the Board should be named as the putative respondent. The Director should be named as the putative interested party instead.
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 add “Director of Immigration” as the putative interested party.
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 he feared that if refouled to Afghanistan, he would be subjected to ill-treatment inflicted by the terrorist gang of Taliban as he was kidnapped once in the past.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 December 2025.
9. When this court asked the applicant for the grounds of his intended judicial review, he merely replied that the situation back home was not good, he wanted to stay in Hong Kong and he still had the enmity there.
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 advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 31 August 2025.
12. What the applicant said at the oral hearing did not amount to any grounds for judicial review either.
Discussion
13. First of all, the applicant’s situation and his alleged danger had been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
14. 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).
15. Thus, 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.
16. In assessing the appeal by the applicant, the Board arranged an oral hearing on 28 July 2025 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
17. The Board noted that the applicant did not adduce support for many material aspects of his claim. The applicant admitted that he did not know if his captors were Taliban at all and it remained to be his own speculation that the captors were Taliban people.
18. Given the grave implausibility of the applicant’s claims that were laid out in paragraph 66 (a) to (e) of the Board’s Decision, the Board found the crux of the applicant’s claim, namely that he was kidnapped in the past and had been targeted by Taliban, to be incredible and implausible. The Board also explicitly stated that even if the kidnap had indeed taken place as claimed, the Board found that the kidnappers had no connection whatsoever with Taliban.
19. Even taking the applicant’s case to its highest, the kidnap appeared to the Board to be a one-off incident and the applicant was merely a victim of a random criminal act. There was no reliable evidence suggesting that the applicant was personally targeted, or was wanted by Taliban or member of the state at all. Moreover, there was no credible evidence that the captors had a real intention to harm or kill the applicant.
20. The Board also found that the ill-treatment on the applicant had not attained a minimum level of severity. No actual harm was inflicted on the applicant even though he was allegedly captured and kidnapped for one and a half day. There was no reliable evidence that the men who kidnapped the applicant were state actors or were connected with Taliban. There was also no evidence that the alleged perpetuator had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or that the ill-treatment was inflicted on him for a RC[1]reason.
21. The applicant had never filed any complaints with the police or any higher authorities. The applicant alleged that the police would not protect him as Taliban was “powerful in the country”, but the Board had considered extensive country of origin information (“COI”) and had discussed the materials with the applicant at the hearing. There were materials suggesting that the police and authorities might not be totally effective against Taliban, there were political unrests, police misconduct and corruption in Afghanistan. However, there were also rapid advancements and cleaning up of Taliban and internal misconduct in office by the Afghan government. The Board was satisfied that the Afghan authorities were taking steps to combat Taliban and had been setting up measures to counter Taliban. The Board was of the view that state protection was available to the applicant and that the Afghanistan government was willing to act to protect its citizens.
22. Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM.
23. The Board noted that given its findings, it was not necessary to assess the viability of internal relocation for the applicant. Nevertheless, the Board had explored the topic for the sake of completeness and found that the applicant, being an able-bodied adult with 10 years of formal education and 7 years of work experience in Pakistan, would be able to relocate to other areas of Afghanistan without undue hardship to avoid the risk imposed allegedly.
24. Thus, the applicant’s feared situation in his country had been duly considered but rejected by the Board.
25. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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 17th day of December 2025
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( Irene 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 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:
17 December 2025
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:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26463
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 902/25 (T2S92)
(formerly RBCZ 5000755/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] RC is the abbreviation for the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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