FIAZ AHMAD ABID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3540/2019

[2025] HKCFI 6257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3540 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 October 2019”.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 18 October 2019.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:

(1)  “TCAB – DECISION 18.10.2019”

(2)  “DIRECTOR DECISION 20.07.2017”

(3)  “Record of interview 16.11.2016”

(4)  “ADL Submission and comments date 12.20.2016”

(5)  “Non-Refoulment claim form Issued by Immigration”

2.  By way of an ex-parte summons dated 11 August 2025 and filed on 16 October 2025, the applicant applied for leave to amend his Form 86. At the oral hearing before this court on 6 November 2025, leave was granted to the applicant to amend Form 86 as per the draft submitted, save that the decision in respect of which relief is sought is to be amended to “Torture Claims Appeal Board’s decision dated 18 October 2019”.

3.  Despite the order granted on 6 November 2025, the applicant did not file the draft Amended Form 86. Thus, Form 86 filed on 29 November 2019 remains the applicant’s Notice of Application on record.

4.  Nevertheless, it is clear that the Leave Application was made in respect of the decision of the Torture Claims Appeal Board (“the Board”) made on 18 October 2019 (“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/2019/HCAL003540_2019_files/the_Board's_Decision.pdf

5.  The Board’s Decision was made in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 July 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on the grounds of BOR 3 Risk[1], BOR 2 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).

6.  The Board found that the applicant had failed to establish his claim that he faced a real risk of ill-treatment and punishment under CIDTP[4] if he was refouled back to Pakistan, and the requirements under CIDTP, BOR 2 Risk, BOR 3 Risk and Persecution Risk had not been fulfilled. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

7.  The applicant’s torture claim was previously lodged under Part VIIC of the Immigration Ordinance and was rejected by the Director’s previous decision dated 17 July 2012 (“the Director’s Previous Decision”). By the Board’s previous decision dated 29 November 2012 (“the Board’s Previous Decision”), the applicant’s appeal against the Director’s Previous Decision was dismissed.

8.  Thus, the applicant’s Torture Risk[5] was finally determined by the Board’s Previous Decision and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

9.  The applicant named “TORTURE CLAIMS APPEAL BOARD / NON-REFOULMENT CLAIMS OFFICE” as the 1^st putative respondent and “DIRECTOR OF IMMIGRATION, HONG KONG” as the 2^nd putative respondent in Form 86.

10.  The applicant also named “Torture claims Appeal Board / Non-Refoulment claim office (Adjudicator)” as the 1^st putative interested party and “Dirctor of Immigration” as the 2^nd putative interested party in Form 86.

11.  In fact, only the Board should be the putative respondent and only the Director should be the putative interested party.

12.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all.

13.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

14.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 18 October 2019”, and hence it is so amended on this court’s own motion.

The applicant’s case

15.  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.

16.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed or seriously harmed by: (1) the relatives of his third wife Chanan; (2) the Jirga at his home village; (3) Mian, a politician at the request of the relatives of Chanan; (4) the police under the influence of Chanan’s relatives; (5) his brother-in-law Kazim (brother of his first wife); (6) Chanan’s ex-husband Sultan; and (7) the Pakistani Government authority or Pakistani police prosecuting him for adultery with a married woman (“zina”) and/or the offence of induced cohabitation with a woman by deceit under section 493A of the Pakistani Penal Code.

Oral hearing

17.  The applicant requested for an oral hearing and his case was heard on 6 November 2025.

18.  The applicant confirmed that the decision in respect of which relief is sought is the Board’s Decision and he would rely on the grounds stated in the proposed amendments to his Form 86. He also submitted a document containing five arguments as his elaboration of the grounds stated in the proposed amendments of his Form 86.

Grounds for judicial review

19.  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).

20.  In the draft Amended Form 86, the applicant raised 3 grounds to challenge the Board’s Decision, namely:-

Ground 1:  The Board made a flawed analysis on the applicant’s credibility.

Ground 2:  The Board’s Decision was unreasonable because it was based on flawed reliance on country of origin information (“COI”) without more.

Ground 3:  The Board erred in law by failing to take into account the future-oriented nature of the non-refoulement principle.

21.  Although the draft Amended Form 86 was not filed, this court will still consider the grounds raised therein as the applicant’s grounds for the Leave Application.

22.  In the document submitted at the oral hearing on 6 November 2025, the applicant put forward five arguments. Arguments 1 to 3 are similar to the 3 grounds mentioned above.

23.  In Argument 4, the applicant referred to paragraph 2 of the Board’s Decision and challenged that the Board did not take into account of FIR[6] which was registered under Islamic Law Hudood Ordinance 1979. The applicant provided a link to a website showing the Offence of Zina (Enforcement of Hudood) Ordinance 1979.

24.  In Argument 5, the applicant asserted that (i) the decision-making authorities did not differentiate between his documents and other person’s document; and (ii) she did not make difference between his wife/mother’s death certificate. The adjudicator claimed that the dead person was his wife but the death certificate submitted concerned his mother.

Discussion

25.  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).

26.  Thus, it is for this court to scrutinize the Board’s Decision and to intervene when there are errors of law, procedural unfairness or irrationality.

27.  In Ground 1 (elaborated in paragraphs 13 to 21 of the draft Amended Form 86), the applicant challenged the Board’s Decision in that the Board did not give clear reasons as to why the applicant’s explanations were not accepted and it was procedurally unfair when the applicant was not given a chance to explain the issues related to his credibility.

28.  As can be seen from paragraphs 34 and 35 of the Board’s Decision, the applicant’s credibility was doubted due to multiple discrepancies in his evidence. However, some of the discrepancies identified, such as whether the death certificate was in relation to the applicant’s first wife or his mother and the failure of the applicant to produce the death certificate of his second wife, were quite irrelevant to the applicant’s claim, which was based on his fear of being harmed or killed for reason of his relationship and/or subsequent marriage with Chanan.

29.  The Board found that the status of the Qureshi Caste, to which the applicant belongs, was debatable, but the Board made this finding only based on the information from the Dictionary of American Family Names of 2013 (Oxford University Press). It seems that the Board might not have properly understood the caste system in Pakistan as contended by the applicant.

30.  It is not necessary for this court to repeat all of the applicant’s arguments in relation to Ground 1, but this court finds that some of the matters relied on by the Board in finding the applicant not credible, as demonstrated above, could be flawed.

31.  In Ground 2 (elaborated in paragraphs 22 to 24 of the draft Amended Form 86), the applicant asserted that the Board’s Decision was unreasonable because it was based on flawed reliance on COI without more. In particular, the applicant challenged that the Board mentioned COI on “honour killings” but did not rely on it or explain the relevance of mentioning it.

32.  The COI referred to by the Board did show that honour killings happened in Pakistan. While these acts occurred most commonly in rural areas, they also occurred in urban areas; and while the majority of victims were women, men were also affected. The Board’s findings at paragraph 45 of the Board’s Decision that the danger the applicant claimed was neither present nor personal and that it was doubtful if the applicant’s claimed risk of being subjected to honour killings still existed do seem to be unreasonable. It is at least arguable whether the Board had considered the COI within the context of the applicant’s personal situation.

33.  In Ground 3 (elaborated in paragraphs 25 to 27 of the draft Amended Form 86), the applicant asserted that the Board erred in law by failing to take into account the future-oriented nature of the non-refoulement principle.

34.  This court notes that the applicant’s claim was rejected, at least in part, because the applicant was never ill-treated by, or experienced any torture or punishment from, the people he claimed he was escaping from before he and Chanan came to Hong Kong. The Board thus assessed that the likelihood of ill-treatments on his return to Pakistan was extremely low.

35.  It is clear that the intensity and frequency of past ill-treatment could not be the sole determining factor for the assessment of future risk upon return to the home country for non-refoulement claimants. The Board’s finding in relation to the applicant’s future risk was arguably not following the principle of future-oriented risk of refoulement as contended by the applicant.

36.  It is not necessary for this court to further discuss the other arguments raised by the applicant in the draft Amended Form 86 and the document submitted at the hearing, as it is clear to this court that the applicant did raise sufficient arguable issues that could challenge the Board’s Decision for being erred in law, procedurally unfair or irrational. This court will deal with the applicant’s arguments in more detail in the substantive judicial review application when the Board and the Director could offer their counter arguments for this court’s consideration.

37.  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 does have a reasonably arguable claim which enjoys realistic prospects of success. Hence, leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

38.  For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

39.  The applicant is directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the 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

Form CALL-1