ALI RASHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 562/2020

[2025] HKCFI 4502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 562 OF 2020

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”. 

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 8 April 2020, 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 19 November 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/2020/HCAL000562_2020_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 rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 May 2017 (“the Director’s Decision) and confirmed the same.

Amendment

3.  The applicant named the Non-refoulement Claims Petition Office as the proposed respondent in Form 86, when only the Board should be the putative respondent.

4.  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 respondent at all. 

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

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 if refouled, he feared being harmed or even killed by people from the Pakistan Muslim League (“PML(N)”) as he had changed his political allegiance to the Pakistan Tehreek-e-Insaf (“PTI”) after he returned to Pakistan from Hong Kong in May 2013 and no longer supported PML(N).  His close friend Sardar Naseem (“Sardar”) was the Chairman of PML(N) in Rawalpindi. Sardar was furious when he came to learn of the applicant’s change of allegiance, as they had been close friends and the applicant knew of his illegal activities.  Sardar was afraid that the applicant would inform PTI of these activities and disclose to others his alleged misappropriation of funds allocated by the government for projects that had not been implemented.

Late application

8.  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.

9.  However, the applicant filed Form 86 on 8 April 2020, which was more than 4 months after the Board’s Decision (made on 19 November 2019).  The applicant was hence late for more than one month 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.

10.  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.

11.  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, the applicant merely explained the delay by saying that it was due to the Covid-19 pandemic at that time and he believed the court was closed.

12.  The delay of more than 1 month is not very substantial, but, as discussed below, there is no merits of the intended judicial review at all.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can be dismissed on the ground of being made out of time alone.

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

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 6 August 2025.

15.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the document with the title “Grounds on which Relief is sought” annexed to his Form 86.  However, when this court asked the applicant to elaborate on the grounds, he simply said no and he had nothing else to say.

Grounds for judicial review

16.  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).

17.  The contents of the document annexed to the applicant’s Form 86 with the title “Grounds on which Relief is sought” are reproduced as follows:-

“1. Notice of Decision by the Director of Immigration and Decision made by the Non-refoulement Claims petition office has all the details of my claim. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims.

2. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country (Pakistan).

3. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

4. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.

5. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.

6. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

7. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response.

8. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.

9. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.

10.  I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

18.  The said document with contents as stated above was 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.

Discussion

19.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be 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.

20.  Paragraphs 3, 5 and 6 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.  Paragraph 10 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed.  It is not a ground at all.  Thus, only paragraphs 1, 2, 4, 7, 8 and 9 of the grounds are relevant to the Leave Application.

21.  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 2 either. 

22.  In any event, the Board did assess the applicant’s risk of right to life.  The Board had considered and rejected the claim that the applicant would face a real and personal risk of being arbitrarily deprived of his life.  The Board found it not credible that either Sardar or his associates would have any motivation to harm the applicant in the manner stated by him.  Hence, there was no reason for the applicant to have any fear of Sardar upon his return to Pakistan.

23.  In paragraph 4 of the grounds, 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. 

24.  In fact, the Board did consider the applicant’s personal background and experience extensively.  The Board questioned the applicant’s involvement with PML(N) both before his first departure to Hong Kong and after his return to Pakistan in 2013.  Further, the Board had also taken into account the applicant’s knowledge and evidence (or the lack thereof) of the alleged illegal activities and the misappropriation of monies allocated by the government for projects that had not been implemented for the assessment of his risks.

25.  The applicant further alleged in paragraph 4 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise.  This is just a vague and general accusation without any specificity. 

26.  In fact, the Board did not make any finding that the police in Pakistan would not be able to protect the applicant.  As the Board found that the applicant did not face any real risk of any of the proscribed forms of harm, the Board did not even make findings on state protection.

27.  In paragraph 7 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response.  This accusation lacks any particulars in support.  The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

28.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection.  The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim.  This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

29.  In paragraph 8 of the grounds, the applicant asserted that the adjudicator failed to take into account the nexus of political parties and official corruption which exists in his country, making the persecution effectively persecution by the State.

30.  However, the Board had explicitly found that the applicant had failed to establish that there was a real and foreseeable risk of his being subjected to persecution on account of race, religion, nationality, membership of a particular social group or political opinion upon his return to Pakistan.

31.  In paragraph 9 of the grounds, 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.

32.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.

33.  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, none of the aforesaid paragraphs in the grounds 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.

34.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

35.  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).

36.  In assessing the appeal by the applicant, the Board held an oral hearing on 25 August 2017.  The applicant was present and was given the chance to present his case to the Board in person. 

37.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion.  The Board found the applicant’s claims were unsupported by any documentation including medical reports.  Considering those claims made by the applicant to the Director and in light of what he had told the Board in evidence, the Board found that neither he nor his claims were in any sense credible.  It was simply not credible that either Sardar or his associates would have had any motivation to harm him.  The applicant therefore should have no reason to have any fear of Sardar upon his return.  The plain fact of the case was that the applicant had no knowledge of anything that could do harm to Sardar.  Without that knowledge, the claims of the applicant made no sense and were not at all credible.

38.  The Board concluded that the applicant had failed to establish his claims even to the low standard required of him.  Given the findings, the Board did not consider the availability of state protection and viability of internal relocation for the applicant.

39.  As the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

40.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

41.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

42.  The assessment of evidence 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.

43.  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. 

44.  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

45.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack 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