AHMED SHEERAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 763/2023

[2026] HKCFI 4256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 763 OF 2023

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.      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 18 May 2023, 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 March 2023 (“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/2023/HCAL000763_2023_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 29 October 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by Sabir Hussain or his gang members due to a land dispute.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 14 July 2026.

6.  When this court asked the applicant to elaborate on the grounds of judicial review which were contained in his supporting affirmation dated 18 May 2023, he merely said that everything was written there and he would rely on them. He added that he had submitted all the pictures and the background of his case to the Board, and the situation was getting worse in his country. He said that he had stayed in Hong Kong for 10 years and 6 months, did not have any criminal record and did not do anything wrong all these years. He could not do anything if he were sent back to Pakistan, but he would accept this court’s decision.

Grounds for judicial review

7.  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).

8.  The applicant did not identify any ground for the intended judicial review in Form 86.

9.  In his supporting affirmation dated 18 May 2023, apart from reiterating the factual background of his non-refoulement claim, the applicant advanced 6 points of complaints under the heading “GROUNDS FOR JUDICIAL REVIEW. The grounds are summarised as follows:-

(1)  The adjudicator did not consider his claim;

(2)  The adjudicator did not accept his documents as the documents were in his mother language;

(3)  The officer refused to give him time to translate the documents because he had no time;

(4)  The translator did not help him at all and became angry if the applicant did not understand;

(5)  The interpreter asked him not to take long time for interview as he had another job; and

(6)  He asked the court to help him and save his life.

10.  What the applicant said at the oral hearing before this court, namely that he had submitted all the pictures and the background of his case to the Board, the situation was getting worse in his country, he had stayed in Hong Kong for 10 years and 6 months and did not have any criminal record and did not do anything wrong, and he could not do anything if he were sent back to Pakistan, were not grounds for judicial review at all.

Discussion

11.  First of all, the applicant’s danger in his home country had been duly 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.

12.  As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in his supporting affirmation, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

13.  He did not state: (1) how the adjudicator did not consider his claim; (2) which part(s) of his claim was not considered; (3) what documents he intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced him; and (5) what he wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

14.  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”.

15.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help him at all.

16.  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).

17.  Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. Nevertheless, 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.

18.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 October 2022. Thus, the applicant was given the opportunity to present his case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

20.  The Board had laid out its findings on the credibility of the applicant’s claims in paragraphs 80 to 87 of the Board’s Decision, and it is not necessary to repeat the same here.

21.  In gist, the Board found major discrepancies, omissions and contradictions in the applicant’s evidence at the Board’s hearing with his evidence given previously, which led the Board to take the view that the applicant was fabricating his evidence in relation to his alleged beatings.

22.  The Board hence considered that the applicant was not a credible witness. Although the Board accepted that the applicant might have had issues with his uncle over a land dispute and differences concerning their political affiliations, the Board found that the applicant was not telling the truth as to what happened. The Board did not accept that the applicant was being persecuted for a Convention reason, and that his past experiences amounted to torture as defined by section 37U of the Immigration Ordinance, or met a minimum level of severity that warranted international protection. There was no suggestion that the incidents described by the applicant involved any state actor acting in an official capacity, or that the applicant’s right to life would be violated.

23.  With regards to the availability of state protection, the Board considered country of origin information (“COI”) and found that despite Pakistan had long had problems with endemic corruption and under-performance with the police and other government organs, there were recent and ongoing efforts to put in place strategies and programmes to bring about improvement. All nationals were subject to the same imperfect system of policing and general governance.

24.  Moreover, the Board had laid out its reasons in paragraphs 91 to 93 of the Board’s Decision for its conclusion that there was no circumstance that would make it unreasonable for the applicant to relocate elsewhere in Pakistan. The Board was of the view that even if the applicant had been able to show that he faced a real risk of harm as claimed, the Board would have found that such risk was confined to the local area where the applicant and his family had lived. There would be minimal risk that anyone would go to the trouble and expense of trying to locate the applicant in order to cause him harm.

25.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

26.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.  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 error 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.

28.  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

29.  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