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HCAL 1443/2021
[2026] HKCFI 2712
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1443 OF 2021
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BETWEEN
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Ishaq Umer |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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 putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 October 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 18 October 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-
“The Decision of The Director of Immigration Dated: 28 December 2018, and
The Decisions of The Adjudicator, Dated: 23-10-2020”
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 23 October 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 December 2018 (“the Director’s Decision”). At the oral hearing before this court on 30 April 2026, the applicant confirmed that only the Board’s Decision should be the subject matter of the Leave Application.
3. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001443_2021_files/the_Board's_Decision.pdf
4. The Board decided that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
5. The applicant named the Director and the Board as both the putative respondents and the putative interested parties in Form 86.
6. As 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.
7. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 23 October 2020”.
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 18 October 2021, which was more than 11 months after the Board’s Decision (made on 23 October 2020). The applicant was hence late for more than 8 months 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 on 30 April 2026, the applicant merely said that he was not aware that the Leave Application was filed out of time and he was only told by the Immigration Department to make the application when he went there for reporting.
12. The delay of more than 8 months is very substantial and there is no good reason for this court to extend the time for the applicant to make the application. Ignorance of the court’s procedures is generally not an excuse. More importantly, there is no merits of the intended judicial review at all as discussed below.
13. 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.
14. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
15. 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.
16. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by his elder sister Asma’s husband, Mushtaq, who killed Asma. The applicant claimed that he made a complaint against Mushtaq to the police in relation to the murder of his sister and Mushtaq had threatened the applicant that he would kill him unless the applicant withdrew his complaint.
Oral hearing
17. The applicant requested for an oral hearing of the Leave Application and his case was heard on 30 April 2026.
18. When this court asked the applicant to elaborate on the grounds for his intended judicial review which were stated in a document annexed to his Form 86 as “Enclosure (2)”, he merely replied that he would rely on the grounds stated therein and everything he said was true. He added that his sister was ill, his father was no longer in this world and his life was still in danger in Pakistan.
Grounds for judicial review
19. 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).
20. As aforesaid, the applicant relied on the grounds stated in the said Enclosure (2), but he did not elaborate them at the oral hearing.
21. In his supporting affirmation dated 18 October 2021, the applicant alleged that the Director’s Decision and the Board’s Decision were unlawful and they failed to take into account the dangers and risks of his life. However, there were no particulars of these allegations contained in the affirmation.
22. The said Enclosure (2) has 4 parts. In Part I, which was titled “FACTUAL BACKGROUND AND CHRONOLOGY”, the applicant mentioned that he came to Hong Kong to save his life and he really had serious life risks everywhere in Pakistan. He also complained that the Immigration Case Officer did not realize the seriousness of his case and disappointed him, and the Immigration Officer only made assumptions and did not know the real situation and condition in Pakistan. He also mentioned that many asylum seekers died in Hong Kong and others who were returned by the Director were killed in their countries.
23. Part II of Enclosure (2) with the title “The Director’s Decision” contained some general grounds directed only at the Director’s Decision.
24. Part III of Enclosure (2) was titled “The Adjudicator’s Determination”. The applicant’s complaints are summarised as follows:-
(1) The adjudicator failed to make sufficient inquiry before finalizing the determination;
(2) The adjudicator stated that the applicant had failed to produce any credible evidence to prove the material elements of his claims. The adjudicator should have noted that torture claimants have limited options at their disposal to produce document, especially when they are under the custody of the Immigration Department in Hong Kong; and
(3) The adjudicator failed to give the applicant sufficient chance to arrange relevant evidence for his non-refoulement claim as well as his appeal.
25. Part IV of the document was titled “STANDING”. The applicant cited Ubamaka[1] and appeared to assert that the Director violated the principles laid down by that case in assessing the applicant’s Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4] and Persecution Risk[5].
26. At the end of Enclosure (2), the applicant asked this court to reconsider his case and grant him leave to apply for judicial review, so that he would be able to get legal assistance from the Legal Aid Department.
Discussion
27. First of all, Part I, Part II and Part IV of Enclosure (2) were only directed at the Director’s Decision. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant had also confirmed that the Board’s Decision should be the only 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.
28. In Part III of Enclosure (2), the applicant alleged that the adjudicator of the Board failed to make sufficient inquiry before finalizing the determination. However, the applicant did not state which part(s) of his claims the Board had failed to make sufficient inquiry. It does not help the applicant to establish any ground by just mentioning the difficulties that torture claimants might face in producing supporting documents/evidence, or accusing the Board for failing to give him sufficient chance to arrange relevant evidence either.
29. It is clear from the Board’s Decision that the applicant had submitted three documents, including a First Information Report, a post-mortem report and a newspaper report, by his then legal representative to the Director at the first tier of the screening process. The documents were also placed before the Board for consideration at the Board’s hearing. If indeed there were further documents that the applicant wished to submit but was unable to acquire at the material time, the applicant could request for time to submit the same, but he did not do so.
30. In any event and significantly, the Board did not challenge the applicant’s credibility as he asserted. Instead, for the purpose of determining the applicant’s appeal/petition, the Board accepted that Asma was the applicant’s sister, that she was murdered on or about 4 June 2012 and that the applicant believed that Mushtaq was the perpetuator.
31. Thus, the applicant’s complaints against the Board in Part III of Enclosure (2) have no substance at all.
32. At the end of the said document, the applicant asked this court to reconsider his case and grant him leave to apply for judicial review, so that he would be able to get legal assistance from the Legal Aid Department. This is not a ground for judicial review at all.
33. 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).
34. Thus, the applicant could not ask this court to reconsider his non-refoulement claims.
35. As to his allegation that he could only seek legal assistance after leave was granted to him to apply for judicial review, the applicant cannot expect free legal representation at all stages of the process.
36. As aforementioned, the applicant was legally represented in the first tier of the screening process when the Director assessed his non-refoulement claim. His then legal representative also assisted him to submit documents that he wished to rely on in support of his claims.
37. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation either.
38. The applicant’s alleged 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 a judicial review.
39. Moreover, 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”.
40. Thus, the applicant’s general allegations that the Board’s Decision was unlawful and it failed to take into account the dangers and risks of his life cannot help him at all.
41. In the circumstances, this court finds that none of the matters that the applicant raised in Enclosure (2), his supporting affirmation and at the hearing before this court constitutes any valid ground for challenging the Board’s Decision. Nevertheless, this court will still 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.
42. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 June 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
43. As aforesaid, the Board had, for the purpose of determining the applicant’s appeal/petition, accepted the applicant’s case that Asma was the applicant’s sister, that she was murdered on or about 4 June 2012, and that the applicant believed that Mushtaq was the perpetuator.
44. However, the Board had given a full analysis of the applicant’s claims and the reasons why it found that the applicant was not at a real risk of being harmed by Mushtaq in paragraphs 61 to 75 of the Board’s Decision.
45. In gist, the Board found that the applicant was not a witness to the murder of his sister and would not be in a position to give evidence against Mushtaq. Mushtaq had already been arrested when the applicant made the report to the police and criminal procedures had been initiated. The applicant did not actually instigate the criminal investigation. On the applicant’s evidence, Mushtaq was released after a few months. Whether that was because of bribery or because of insufficient evidence, Mushtaq would have no reason to feel threatened by the applicant, which was the only motive the applicant gave as to why Mushtaq would wish to harm him.
46. The Board did not find the applicant’s account of Mushtaq’s threats or the account of the assault upon him with baseball bats credible. The Board concluded that the applicant would not be at any real risk of harm if he returned to his family home in Pakistan.
47. Moreover, the Board did not find that Mushtaq was well-connected or influential as the applicant had claimed. The Board did not find the applicant’s account of Mushtaq’s relentless pursuit of him to Hafizabad, Gilgit, Karachi, Multan and Lahore to be plausible or credible. Thus, the Board came to the view that if relocation were necessary, the applicant could safely and reasonably live in either Lahore or Karachi, where he stayed for some time before coming to Hong Kong.
48. In view of its findings that Mushtaq would have no reason to feel threatened by the applicant, which was the only motive the applicant gave as to why Mushtaq would wish to harm him, and that internal relocation was a viable option to the applicant if needed, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
49. The finding of facts, including the assessment of evidence 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.
50. 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.
51. 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
52. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 13th day of May 2026
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( Gladys LEE )
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: 13/05/2026
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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15190/19/1/63/P3044
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4852/18 (formerly RBCZ 11648/16) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[5] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees.
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