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HCAL 339/2021
[2026] HKCFI 548
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 339 OF 2021
BETWEEN
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Ahmed Hafeez |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative 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 and filed on 12 March 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 16 February 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/HCAL000339_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant failed to substantiate his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 31 December 2019, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board / Non-Refoulement Claims Petition Office as the putative respondents but did not name any putative interested party.
4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. 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.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed by people of the Wahhabi sect of Islam.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. His case was heard on 6 January 2026.
10. At the hearing, this court asked the applicant to elaborate on the grounds for his intended judicial review. However, the applicant only said that and he wanted to stay in Hong Kong because his life would still be in danger if he went back and he was very upset with the situation back home.
Grounds for judicial review
11. 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).
12. The applicant did not state any grounds for his intended judicial review in his Form 86. In his supporting affirmation dated 12 March 2021, the applicant stated that the Board’s Decision was totally unfair to him. He also attached a 3-page written submission and a 9-page document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” to his affirmation.
13. In the said 3-page written submission, the applicant made his submissions under three headings, ie “Rider (A)”, “Rider (B)” and “Rider (C)”, the contents of which are summarised as follows:-
(1) In Rider (A), the applicant alleged that the same level of threat from his enemy still existed, despite the authorities said otherwise.
(2) In Rider (B), the applicant alleged that the Board failed to make sufficient enquiry and failed to inquire from Pakistani authorities. He cited the provisions in section 37ZO of the Immigration Ordinance, Cap 115, and alleged that non-refoulement claims should be assessed as a forward facing risk since the Director had not previously considered such evidence. He also requested his claims to be assessed with legal and interpretation assistance provided by the duty lawyers service.
(3) In Rider (C), the applicant alleged that there was no justice in Pakistan and requested this court to give him justice.
14. In the said 9-page document, the applicant cited a number of benchmark cases on non-refoulement claims and asserted some general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those benchmark cases and the general grounds were applicable to his own case.
15. This court will deal with the aforesaid grounds as discussed below.
Discussion
16. This court will first deal with the grounds asserted in the applicant’s written submission.
17. The applicant asserted that the same level of threat still existed despite the authorities said otherwise. However, the applicant’s claimed threat and risk had been fully assessed and rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
18. The applicant complained that the Board failed to make sufficient enquiry and failed to inquire from Pakistani authorities. However, he did not explain which aspects of his claim the Board had failed to make sufficient enquiry or why the Board needed to inquire from the Pakistani authorities.
19. Section 37ZO of the Immigration Ordinance is completely irrelevant to the applicant’s case as it only concerns with limitations on subsequent claim.
20. In respect of the applicant’s allegation that there was a lack of legal and interpretation assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
21. Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).
22. In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.
23. His comment that there was no justice in Pakistan is not a ground for judicial review at all.
24. Thus, none of the matters mentioned in the applicant’s written submission can constitute a valid ground to challenge the Board’s Decision.
25. In the said 9-page document, the applicant summarised his challenge in respect of the Board’s Decision by way of nine grounds of judicial review, which contained allegations under headings such as “Misdirection in the Law”, “Procedural Impropriety / Unfairness” and “Irrationality”. However, they only contained some general accusations against the Board without any particulars or any regard to his own situations.
26. 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”. Thus, such general allegations cannot help the applicant at all.
27. The applicant also asserted that the Board failed to put weight on highly relevant country of origin information (“COI”) and relied on materials which were outdated or irrelevant. The applicant alleged that the Board failed to take into account “USHR 2010”, “USRF 2010” and “The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which would support a finding of consistent pattern of human rights abuses in Pakistan and there was a lack of state protection.
28. However, as stated in paragraph 108 of the Board’s Decision, the applicant did not submit any COI at the first-tier screening, nor did he submit any COI to the Board. If there were any COI that the applicant wanted the Board to consider, he should bring the Board’s attention to those materials. 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.
29. Thus, it is groundless for the applicant to raise the allegation that the Board had failed to consider certain COI materials at this stage in a judicial review without first raising them to the Board.
30. Moreover, the applicant did not state which pieces of materials that the Board relied on were outdated or irrelevant. Contrary to the applicant’s assertion, this court finds that the Board had clearly referred to extensive COI materials which were fully-referenced, generally update and clearly focused on the circumstances of the applicant in its assessment of the applicant’s claims.
31. The applicant challenged the Board for having failed to consider a consistent system of human rights violation in Pakistan. However, as can be seen in paragraphs 113 to 117 of the Board’s Decision, the Board did explicitly make findings on the general situation of Pakistan. It had taken note of some of the scathing remarks on the police and the undeniable fact that the enforcement of law and order in the country was marred by instances of corruption and inefficiency of the police. Nevertheless, the Board found that such instances did not constitute a systemic or institutionalised unwillingness to afford protection to victims of torture, ill-treatment, risk to life or persecution by non-state actors.
32. Thus, the applicant’s allegation that the Board had failed to evaluate and make a finding of fact as to whether there was a consistent pattern of gross and mass violation of human rights violation in Pakistan is groundless.
33. It is clear that the Board, as aforesaid, did take the general situation of Pakistan into consideration. This is evident from the Board’s extensive reference to the COI materials regarding the Pakistani government generally, and its conclusion that there was in force in Pakistan a comprehensive system of law and machinery for the detection, prosecution and punishment of violence and threats against the person, and there was an ability and readiness to operate that machinery. There is simply no ground for the applicant to accuse the Board for not considering this matter.
34. Finally, the applicant’s complaint that the Board failed to call for psychological and psychiatric evaluations and reports cannot help him either. It is not a must for the Board to call for such reports when it was not raised by the applicant at the appeal stage and the Board did not find it necessary to do so in its assessment of the applicant’s appeal/petition.
35. Thus, none of the general accusations raised by the applicant could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
36. 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).
37. 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.
38. In assessing the appeal by the applicant, the Board held two oral hearings on 17 July 2020 and 20 August 2020 respectively. The applicant was present and was given the chance to present his case to the Board in person. When the hearing was adjourned part-heard, the Board reminded the applicant about the burden of proof and he should try to produce documents at or before the adjourned hearing in support of his claims.
39. The Board had provided a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.
40. The Board clearly laid out in the Board’s Decision numerous inconsistencies, contradictions and implausibilities in the applicant’s evidence given at different times. Having tested the applicant’s account carefully and looking at the evidence as a whole, the Board had no hesitation in rejecting it. The Board did not accept that (1) the applicant was ever threatened or assaulted; (2) he came to Hong Kong due to a fear for his life and safety; and (3) his father was killed in the circumstances he described.
41. The Board accepted that the schism between the Shia and some sectors of the Sunni denominations was well-known. However, the Board found that the applicant only sought to build a claim on this known issue in the hope that it would lend credibility, but his account consisted of nothing more than facile and bare assertions which did not bear scrutiny.
42. Based on its extensive finding of facts including findings on the credibility of the applicant and consideration of credible and relevant COI, the Board concluded that the applicant failed on his credibility. There was no factual basis on which to found any of the applicable grounds under the USM. Further or alternatively, even on the applicant’s account, state protection would be available to him. Moreover, and in any event, internal relocation was a viable option for the applicant.
43. Thus, the Board did not accept that there was a real and personal risk that the applicant would be subjected to harm from anyone upon his return to Pakistan.
44. 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.
45. 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.
46. 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
47. For reasons aforesaid, the Leave Application is dismissed.
Dated the 4thday of February 2026
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( Irene LEE ) |
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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 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: 4 February 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:
4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16692/20/1/54/P3269
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 870/19
(Formerly RBCZ 10630/19) (T2S1)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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