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HCAL 1204/2021
[2026] HKCFI 1784
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1204 OF 2021
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BETWEEN
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Tawab Faizan |
Applicant |
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and |
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Director of Immigration |
1st Putative |
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Respondent |
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Torture Claims Appeal Board |
2nd Putative |
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Respondent |
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and |
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Director of Immigration |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the 2nd putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the second decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 13 August 2021”.
2. The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 16 April 2021 be dismissed.
3. The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 13 August 2021 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 27 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) “The Decision of the Director of Immigration Dated 16 April 2021”; and
(2) “The Decision of the Adjudicator Dated 13 Aug 2021”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 13 August 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 April 2021 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001204_2021_files/the_Board's_Decision.pdf
3. The Board rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
4. In Form 86, the applicant named “The Adjudicator of the Non-Refoulment Claims Petition office approved to determine the applicant Petition” as the 2nd putative respondent. However, the adjudicator made the Board’s Decision in his capacity as a member of the Board. Thus, the 2nd putative respondent should be the Board, and the second decision in respect of which relief is sought should be the Board’s Decision.
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. The applicant also named “Torture Claims appeal Board Non-Refoulment Claims Petition Office” as the putative interested party in Form 86, when the Director should be so named.
7. Thus, on this court’s own motion, the name of the 2nd putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration”, and the second decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 13 August 2021”.
The intended judicial review in respect of the Director’s Decision
8. As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.
9. Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by Sajid and his family members (collectively “Sajid’s Family”) since Sajid’s sister Sofia had expressed love towards him and had stayed in his home. Sajid’s Family wanted to seek revenge against him for bringing shame on them.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 26 February 2026.
13. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
14. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
15. 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).
16. In the applicant’s supporting affirmation dated 27 August 2021, the applicant mentioned that he did not agree with the decision because the decision was erred and the Board made decision on the basis of another applicant. He stated that everybody knew the situation of asylum seeker in Hong Kong.
17. The applicant also annexed a document to his supporting affirmation with the title “GROUNDS”. In that document, the applicant mentioned that the Board erred in paragraphs 26 to 39. The applicant also mentioned that his enemies were wealthy and very well-known in the city, and that was the reason why he did not report to the police against his enemies and why he could not relocate. He also repeated his claims as to why his enemies would pursue him.
18. This court will deal with the grounds as discussed below.
Discussion
19. First of all, the applicant’s assertions in his supporting affirmation and the said document titled “GROUNDS” that the Board’s Decision was erred and the Board erred in paragraphs 26 to 39 of the Board’s Decision, were advanced without any particulars. The applicant did not specify why or how the Board’s Decision was erred, and why or how the said paragraphs were erred.
20. In fact, this court finds no errors in the approach and factual findings made by the Board in paragraphs 26 to 39 of the Board’s Decision. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, save when the findings involve errors of law or irrationality. This court cannot find any errors of law or irrationality in the Board’s findings that were contained in the said paragraphs. The fact that the Board did not accept the applicant’s claims as genuine does not mean that there were errors in the Board’s Decision.
21. Further, despite the Board’s findings, the Board still assessed the applicant’s claim at its highest. Nevertheless, the Board still found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM. Thus, there is no merits in the applicant’s complaint of the Board’s findings in relation to his credibility at all.
22. The applicant also mentioned that the Board made decision on the basis of another applicant. However, as can be seen in the Board’s Decision, the Board did consider the applicant’s claims and his own circumstances carefully. There is nothing in the Board’s Decision which reflects that the Board made its decision on the basis of another applicant.
23. Finally, the applicant’s assertion that everybody knew the situation of asylum seeker in Hong Kong was irrelevant to his claim and is not a valid ground for his intended judicial review.
24. Thus, this court finds that none of the assertions in the applicant’s supporting affirmation and the said document constitutes a valid ground to challenge the Board’s Decision.
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, 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.
27. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 June 2021 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
28. As aforesaid, the Board had clearly laid out its findings in the Board’s Decision. The Board found that the discrepancies in the applicant’s evidence were too numerous and impossible to be reconciled, rendering the applicant’s evidence unreliable. The Board did not find the applicant to be telling the truth. His story about Sofia and other matters including the murder of Sofia, the alleged threats by Sajid and the attack in Swabi City were not accepted.
29. However, the Board did apply high standards of fairness in the assessment of the applicant’s claims. Despite its findings, the Board still went on to assess the applicant’s claimed risks by taking his case to its highest and on the basis that his story was true to the extent that the stated threats had been issued towards him.
30. As can be seen from paragraphs 39 to 42 of the Board’s Decision, the Board considered that the ill-treatment inflicted upon the applicant did not reach a minimum level of severity, Sajid’s Family was not very powerful as the applicant claimed and their abilities to locate the applicant throughout the country were in doubt. There was no evidence of state acquiescence in the ill-treatment of the applicant. Moreover, there were sufficient safeguards established by the state should the applicant encounter any difficulties in Pakistan.
31. Given that the Board did not see any real chance that the applicant would be harmed or the police’s protection would not be available to him, the Board did not find it strictly necessary to assess the viability of internal relocation for the applicant. Nevertheless, if it were necessary for the applicant to get out of the place where he used to live and to keep away from Sajid’s Family, the Board found that the applicant, being young with education and work experience, could relocate to other places in Pakistan. The Board found no basis to substantiate the claim that Sajid’s Family could search for him throughout the country.
32. Thus, the Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.
33. The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
34. 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.
35. 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
36. For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 25 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
2nd putative respondent’s ref. no.:
USM 17865/21/4/68/P3443
Director of Immigration
1st putative respondent and the putative interested party’s ref. no.:
QA T/C 79/21 (formerly RBCZ 10056/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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