IFTIKHAR ALI SHAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1669/2021

[2026] HKCFI 3234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1669 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”, 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 9 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 23 November 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/HCAL001669_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 June 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board, Non-refoulement Claims Petition Office and the Director as the putative respondents and 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.  This court therefore 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 or killed by persons from the Pakistan Tehreek-e-Insaf party (“PTI”) due to his involvement with the Pakistan Muslim League (N) (“PML(N)”).

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 21 May 2026.

10.  When this court asked the applicant to elaborate the grounds stated in his two written submissions that were filed with his two affirmations dated 9 December 2021 and 14 May 2026 respectively, the applicant merely said that everything was written there and he had nothing to add.

11.  However, the applicant wanted to submit further supporting documents for his non-refoulement claim to this court. As it was not for this court to re-assess his non-refoulement claim, his request to submit further documents was refused.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for his intended judicial review in Form 86.

14.  In his written submission filed with his supporting affirmation dated 9 December 2021 (“the 1^st Written Submission”), the applicant presented some grounds for his intended judicial review which can be divided into five parts.

15.  The first part, which was under the heading “REQUESTED LEAVE BE GRANTED TO THE APPLICANT TO THE JUDICIAL REVIEW”, contained two grounds which can be summarised as follows:-

A.  The Board determined his case without a hearing and hence the Board’s Decision was Wednesbury unreasonable or irrational; and

B.  The Board had failed to give any or had given insufficient reason for dismissing the appeal without a hearing.

16.  In the second part, the applicant made submissions under two headings, namely “Rider (A)” and “Rider (B)”, the contents of which are summarised as follows:-

(1)  In Rider (A), the applicant questioned what asylum was and mentioned that it was complicated and the rules changed a lot. He did not know how to win an asylum case or prove himself to be part of a “particular social group”. He also mentioned that he, as a victim of domestic violence or sexual assault, would need an attorney who had experience applying for asylum for domestic violence and sexual assault survivors.

(2)  In Rider (B), the applicant alleged that the Board failed to make sufficient enquiry before finalising the decision in which the adjudicator failed to inquire from the Pakistani authorities. He claimed that the adjudicator refused his appeal without any reason. He had no faith in the authorities in his country even with the change of the government or ex-government. Further, he cited the provisions in section 37ZO of the Immigration Ordinance, Cap 115.

17.  The third part was contained under the heading “THE DOCTOR’S DECISION”. However, all the assertions under this part were allegations against the Director.

18.  In the fourth part, under the heading “THE ADJUDICATORS DETERMINATION OF APPEAL/PETITION WITHOUT A HEARING”, the applicant advanced two grounds against the Board, which are summarised as follows:-

(1)  The adjudicator failed to make sufficient inquiry before finalising the determination and only followed the Director’s Decision, despite that the adjudicator accepted that the applicant sustained a serious assault in 2018 (see paragraph 39 of the Board’s Decision) and accepted the applicant’s claims regarding the attack against him in 2018 and considered the nature of his injuries as serious (see paragraph 52 of the Board’s Decision).

(2)  The adjudicator had totally failed to give sufficient chance and to arrange an oral hearing for the applicant.

19.  In the fifth part, under the heading “ERROR OF LAW/PROCEDURAL UNFAIRNESS:; THE DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD (TCAB) ERRED IN LAW BY EXCLUDING OR GIVING NO WEIGHT TO CERTAIN EVIDENCE BECAUSE REGARDED IT AS HEARSAY OR SPECULATION”, the applicant alleged that such cherry-picking and biased and formula approach in coming to such conclusion was highly unfair and prejudicial.

20.  In the applicant’s written submission filed with his supporting affirmation dated 14 May 2026 (“the 2^nd Written Submission”), the applicant merely stated some very general grounds which 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. The applicant is no exception.

21.  As mentioned, the applicant did not elaborate on any of the aforesaid grounds at the oral hearing before this court. Nevertheless, as the applicant is relying on the grounds contained in his two written submissions, which are summarised above, this court will deal with them as discussed below.

Discussion

22.  This court will first deal with the applicant’s assertions in the 1^st Written Submission.

23.  In the first part of the 1^st Written Submission, the applicant challenged in paragraph A that the Board determined his case without a hearing and hence the Board’s Decision was Wednesbury unreasonable or irrational. In paragraph B, the applicant asserted that the Board had failed to give any or had given insufficient reason for dismissing the appeal without a hearing.

24.  This court notes that the Board indeed assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh. The Board’s reasons for not having an oral hearing were laid out in details in paragraphs 32 to 36 of the Board’s Decision. In gist, the Board was satisfied that the applicant had provided everything he wished, and the applicant’s case could be justly determined without a hearing.

25.  Moreover, by way of its letter dated 8 October 2021, the Board had invited the applicant to make submissions and advised him of the initial observations of his case after his case had been reviewed. The applicant did reply to the Board on 27 October 2021 and stated that he disagreed with the Director’s Decision, insufficient attention was given to the medical reports he provided, he did not have any faith in the authorities and there was no justice in Pakistan. The applicant also provided copies of the documents provided to the Director, including the First Information Report and photographs of his injuries.

26.  Thus, despite that there was no oral hearing, the applicant was in fact given the opportunity to present his case to the Board in writing.

27.  There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

28.  Since the applicant was given the opportunity to present his case to Board in writing and the applicant did in fact do so, there was nothing unfair to the applicant. The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim. These included the serious assault he encountered in June 2018, the serious injuries he sustained as a result of that assault, the fact that he stayed in his home area for about 8 months after the attack, his subsequent move to Karachi for another 18 months, and the applicant’s subjectively fear of being harmed or killed or otherwise located by the PTI people.

29.  In fact, the Board did not challenge the credibility of the applicant’s case, and accepted the factual basis of his claims that he suffered serious injury in an attack in June 2018 purportedly by the PTI people without any reservation. Thus, there is simply no justification to allege that the lack of an oral hearing was unfair to the applicant, or that the Board’s Decision was unreasonable or irrational simply because there was no oral hearing.

30.  The Board had given full and justified reasons in paragraphs 40 to 43 of the Board’s Decision for being not satisfied that the PTI people had any continuing interest in the applicant, being at best a low-level grass roots supporter of PML(N), such that they would seek to find and harm him upon his return to Pakistan, given that PTI held power in Punjab and nationally since the election in July 2018. The Board found no evidence indicating that a person such as the applicant would present any threat to the PTI’s power, such that they would have any interest in pursuing or harming him.

31.  In fact, the applicant’s evidence was that even after the attack in June 2018, he remained in his own area until February 2019 and subsequently lived safely in Karachi between February 2019 to August 2020. These were indicative that the applicant was not of any interest to PTI, as they could have sought him and harmed him during those periods, but they did not.

32.  The applicant’s evidence also indicated that any fear he had from the men was localized in his home area. There was nothing to suggest that anyone had any interest in him outside that area. The Board did not accept that they would even be aware of the applicant’s return to Pakistan or would have any continuing interest in pursuing him in Pakistan. The Board was satisfied that the applicant could return to Karachi, where he had lived for about 18 months without incidents before his departure from the country, and it was both reasonable and not unduly harsh for him to do so.

33.  Thus, the Board was not satisfied that there was a real chance or real risk that the applicant would be pursued or harmed by the PTI people upon his return to Pakistan such that he would suffer any proscribed forms of harm under the USM. The Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

34.  Thus, there is no merit in the applicant’s accusation that the Board failed to give any or had given insufficient reason for dismissing his appeal without a hearing.

35.  In Rider (A) under the second part of the 1^st Written Submission, the applicant questioned what asylum was and mentioned that it was complicated and the rules changed a lot. He did not know how to win an asylum case or prove himself to be part of a “particular social group”. He also mentioned that he, as a victim of domestic violence or sexual assault, would need an attorney who had experience applying for asylum for domestic violence and sexual assault survivors.

36.  However, the applicant’s case was not based on him being of a “particular social group” and had nothing to do with domestic violence or sexual assault whatsoever.

37.  In any event, it is clear from the Board’s Decision that the applicant’s risks on all the applicable grounds, including Persecution Risk[1], under the USM had been fully considered. The Board had made findings and determined that the applicant had not shown a well-founded fear of persecution and was not entitled to non-refoulement protection in Hong Kong. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

38.  In Rider (B), the applicant alleged that the Board failed to make sufficient enquiry before finalizing the decision in which the adjudicator failed to inquire from the Pakistan authorities. He claimed that the adjudicator refused his appeal without any reason. He had no faith in the authorities in his country even with the change of the government or ex-government and there was no justice in Pakistan. Further, he cited the provisions in section 37ZO of the Immigration Ordinance, Cap 115.

39.  The applicant’s lack of faith in the authorities and his belief that there was no justice in Pakistan had been presented to the Board in his reply to the Board on 27 October 2021 (see paragraph 30 of the Board’s Decision). However, the applicant failed to demonstrate why the Board would need to make inquiry from the Pakistan authorities given the circumstances of his own case. Contrary to his accusation that the Board refused his appeal without any reason, the Board had in fact provided full reasons why it found that the applicant was not at a real risk of any of the proscribed forms of harm upon refoulement as aforesaid.

40.  The applicant cited section 37ZO of the Immigration Ordinance, but it is completely irrelevant to the applicant’s case, as that section only concerns with limitations on subsequent claim.

41.  Hence, the second part of the 1^st Written Submission does not contain any arguable ground.

42.  The third part of the 1^st Written Submission was under the heading “THE DOCTOR’S DECISION”. However, all the assertions under this part were allegations against the Director.

43.  The applicant cannot challenge the Director’s Decision on judicial review, as it was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Hence, the third part of the 1^st Written Submission, which contains only allegations against the Director, can simply be ignored. This court will only deal with the applicant’s application in respect of the Board’s Decision, which is the only subject matter of the Leave Application.

44.  In the fourth part of the 1^st Written Submission under the heading “THE ADJUDICATORS DETERMINATION OF APPEAL/PETITION WITHOUT A HEARING”, the applicant advanced two grounds against the Board.

45.  In the first ground under this part, the applicant challenged that the Board failed to make sufficient inquiry before finalizing the determination and only followed the Director’s Decision, despite the adjudicator’s acceptance that the applicant sustained a serious assault in 2018 and that the nature of his injuries was serious.

46.  As aforesaid, the Board had indeed accepted all the basic facts of the applicant’s case, including the attack he encountered in June 2018 and his resulting serious injuries in its assessment of the applicant’s appeal/petition. However, there is nothing to substantiate the applicant’s allegation that the Board only followed the Director’s Decision. The Board had made its own findings that the applicant was not at a real risk upon his refoulement due to the reasons it had given in paragraphs 40 to 43 of the Board’s Decision as aforesaid. This court finds no flaw in the Board’s reasoning.

47.  In fact, although the Board must take into consideration the assault and injuries that the applicant suffered in the past when determining the applicant’s appeal/petition, the Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

48.  Although the applicant had been attacked and suffered serious injuries in the incident in June 2018, which was shortly before the national elections of Pakistan held in July 2018 when there were inevitably heightened tensions between supporters of PML(N) (which was the ruling party at that time) and PTI (which was contesting the elections). The Board had correctly followed the above principle in Ubamaka and decided that PTI would no longer have any continuing interest in a person such as the applicant, given that they held power in Punjab and nationally after the election.

49.  Thus, the Board did assess the applicant’s current risk in returning to Pakistan at the time of the Board’s proceedings. There is absolutely no substance in the applicant’s allegation that the Board failed to make sufficient inquiry before finalizing its determination.

50.  The applicant’s allegation in the second ground under this part, namely that the adjudicator had totally failed to give sufficient chance and to arrange an oral hearing for the applicant, had already been dealt with in the discussion above and it is not necessary to repeat the same here.

51.  In the fifth part of the 1^st Written Submission, under the heading “ERROR OF LAW/PROCEDURAL UNFAIRNESS:; THE DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD (TCAB) ERRED IN LAW BY EXCLUDING OR GIVING NO WEIGHT TO CERTAIN EVIDENCE BECAUSE REGARDED IT AS HEARSAY OR SPECULATION”, the applicant alleged that the Board committed error of law/procedural unfairness by excluding or giving no weight to certain evidence as they were hearsay or speculation, and such cherry-picking, biased and formula approach in coming to such conclusion was highly unfair and prejudicial. However, the applicant did not give any particulars regarding these general accusations.

52.  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”.

53.  Thus, the applicant’s aforesaid general assertions cannot amount to any valid ground in challenging the Board’s Decision.

54.  This court now turns to deal with the 2^nd Written Submission.

55.  The 2^nd Written Submission contains 14 paragraphs, with two paragraphs both numbered as paragraph 3. For ease of reference, the two paragraphs 3 will be referred to as paragraph 3(1) and paragraph 3(2) in the ensuing discussion.

56.  First of all, some of the grounds listed in the 2^nd Written Submission were directed at the Director. As said, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

57.  Paragraphs 5, 6 and 8 in the 2^nd Written Submission were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can simply be ignored.

58.  In paragraph 1, the applicant merely referred to himself as the aggrieved party. In paragraph 10, the applicant only stated that the Board’s Decision contained all the details of his claim. Thus, paragraphs 1 and 10 are not grounds at all. In the circumstances, only paragraphs 2, 3(1), 3(2), 4, 7, 9, 11 to 13 of the 2^nd Written Submission are relevant to the Leave Application.

59.  In paragraph 2 of the 2^nd Written Submission, 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.

60.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraphs 3(1), 3(2) and 4 either.

61.  In any event, the Board did assess the applicant’s risk of right to life. For the reasons given in paragraphs 40 to 43 of the Board’s Decision, the Board was not satisfied that the applicant would suffer the death penalty, arbitrary deprivation of life or genocide on the basis of his involvement with PML(N).

62.  In paragraph 7 of the 2^nd Written Submission, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

63.  In fact, the Board did consider the applicant’s personal background and accepted that he was an active supporter of PML(N) as claimed. The mere fact that the Board found the applicant not at a real risk of any proscribed harm upon refoulement to Pakistan does not mean that the Board failed to take his personal background and experience into account.

64.  In paragraph 9 of the 2^nd Written Submission, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

65.  The applicant further alleged in paragraph 11 that the Board’s Decision was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness. He also mentioned in paragraph 13 that both the Director and the Board did not make proper investigation in his claims and rejected his claim as quickly as possible. However, these were just vague and general accusations without any specificity.

66.  Finally, the applicant asserted in paragraph 12 of the 2^nd Written Submission that the Board relied on some web news which were not officially recognized by the authorities, there was no proper investigation in his claims and he did not think his claim was determined fairly. However, the applicant failed to specify which pieces of web news that the Board relied on were not officially recognized. It is futile to accuse the Board for failing to investigate into his claim properly without any details in support.

67.  As aforesaid, general assertions without particulars cannot be effective grounds to support a judicial review. Thus, none of the aforesaid paragraphs in the 2^nd Written Submission 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.

68.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision, either by way of the 1^st Written Submission or the 2^nd Written Submission.

69.  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).

70.  As aforesaid, the Board’s determination of the applicant’s case, including the decision in not having an oral hearing, was fully justified and supported with detailed reasoning. There was nothing unfair or prejudicial to the applicant. After careful examination of the Board’s Decision, this court is satisfied that there are no errors of law, procedural unfairness or irrationality in the Board’s Decision.

71.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision in dealing with the applicant’s appeal/petition. The applicant’s alleged risks upon refoulement to Pakistan had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

72.  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.

73.  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

74.  For reasons aforesaid, the Leave Application is dismissed.

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