ASLAM WASEEM v. TORTURE CLAIMS APPEAL BOARD

HCAL 414/2021

[2026] HKCFI 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 414 OF 2021

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”, “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 21 December 2020”.

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 23 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-

(1)  “The Decision(s) of the Director of Immigration dated 19^th July 2018”; and

(2)  “The Decision of the Adjudicator dated 21^st December 2020”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 21 December 2020 (“the Board’s Decision”) in respect of the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 19 July 2018 (“the Director’s Decision”).

3.  At the oral hearing on 24 February 2026, this court explained to applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that only the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000414_2021_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

5.  The applicant had previously made a torture claim and his claim was rejected by the Director on 18 October 2013. The applicant did not appeal against that decision. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to re-assess the same.

Amendments

6.  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 in Form 86, and did not name any putative interested party.

7.  Since the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

8.  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.

9.  Thus, this court 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 21 December 2020”.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed Form 86 on 23 March 2021, which was 3 months and 2 days after the Board’s Decision (made on 21 December 2020). The applicant was hence late for 2 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 24 February 2026, the applicant said that he had some medical issues at the material time and was hospitalized. He added that he did not have the documents with him and he needed time to go through the documents. Hence, he made the application late.

14.  Although the delay of 2 days is not substantial, the explanations given by the applicant are clearly not satisfactory. He could not recall the exact dates he was hospitalized but he was only hospitalized for 3 to 4 days while he had three months to make the application. He also had ample time to get and go through the documents he needed within that 3 months’ period. More importantly, there is no merits in the intended judicial review as discussed below.

15.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

16.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

17.  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.

18.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared he would be harmed or killed by Sami Ullah (“Sami”), who was a member of the Pakistan Peoples Party (“PPP”) and a member of National Assembly, since the applicant was a member of the Pakistan Tehreek-e-Insaf (“PTI”) and refused to join PPP.

Oral hearing

19.  The applicant requested for an oral hearing and his case was heard on 24 February 2026.

20.  When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were annexed to his supporting affirmation dated 23 March 2021, the applicant merely reiterated his political problem in Pakistan, but he confirmed that all these matters had already been presented to the Board.

21.  However, he added that 5 years had passed since he made the Leave Application, and his enemies had grown even stronger. His enemies were the ruling party and the leader of his own party was in prison. He might meet the same fate if he was in Pakistan and could even be killed. He asked for more time to stay in Hong Kong.

Grounds for judicial review

22.  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).

23.  The applicant did not identify any grounds for the intended judicial review in Form 86. In a document with the title “Grounds on which Relief is sought” which was annexed to his supporting affirmation dated 23 March 2021, the applicant asserted 4 grounds for his intended judicial review.

24.  The contents of the said document were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

25.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He only mentioned about his political problem in his country, which was not a ground for judicial review, as his problem had been duly assessed by the Board.

26.  What the applicant said at the oral hearing about the leader of his party being arrested was not presented to the Board for assessment. It did not constitute any valid ground for his intended judicial review either.

Discussion

27.  First of all, the applicant’s allegation at the oral hearing that the leader of his own party was arrested was not presented to the Board when it was dealing with the applicant’s petition. 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.

28.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

29.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to re-assess the applicant’s non-refoulement claim based on any new evidence.

30.  The applicant’s political problem had already been fully 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.

31.  As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali, supra). The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

32.  Paragraphs 2 to 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.

33.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.

34.  In any event, the Board did assess the applicant’s risk of right to life but found that the applicant had failed to prove the primary facts on how likely the feared risk would materialize and concluded that there was no real risk of him being killed.

35.  Thus, this court finds that none of the assertions of the applicant constituted a valid ground to challenge 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, supra).

37.  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.

38.  In assessing the applicant’s petition, the Board held an oral hearing on 6 December 2019 and the applicant was present. Thus, the applicant was given the chance to present his case to the Board in person.

39.  As can be seen from paragraphs 32 to 35 of the Board’s Decision, the Board did not accept that the applicant was a member of PTI and found it unbelievable that Sami, a well-known public figure, would have dispute with a supporter of the opposite party who just arranged meetings and introduced voters to the opposing party.

40.  The Board found that the applicant’s statement was totally unbelievable. It was absurd that a well-known public figure would confess to a man he met on the street that he was the mastermind of all the wrongdoings and left. The alleged incidents that occurred to the applicant, including the shooting incident in 2011, the kidnap and assault incident with inconsistent dates given by the applicant, and the arrest and assault by the police, were all rejected. The Board also found the applicant’s evidence that there were still fake cases against him in his country to be his mere assertions without any information provided.

41.  The Board laid out its reasons in paragraphs 56 to 60 of the Board’s Decision as to why it concluded that, even if the applicant’s case was accepted, the Board did not find that there was a real likelihood for the risks to be materialized.

42.  Moreover, the Board found from fully-referenced country of origin information (“COI”) that there was sufficient protection in Pakistan. In addition, PTI was the ruling party at the time of the Board’s Decision. There was no evidence that Sami and his PPP people might think they could do whatever they had wanted to the applicant and the police would just stand by and not giving the applicant any assistance.

43.  The Board further found that internal relocation was a viable option for the applicant.

44.  The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

45.  The assessment of evidence, COI and risk of harm was primarily within the sole ambit 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 decision.

46.  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.

47.  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

48.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits.

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