NASIR ASAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 89/2020

[2025] HKCFI 2953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 89 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 19 December 2019 and filed on 9 January 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 6 January 2020 (“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/HCAL000089_2020_files/the_Board's_Decision.pdf

2.  The Board found that there was no reasonable credible account of events to show the applicant would be facing Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] in his country.  Hence, the Board dismissed the applicant’s appeal, disallowed his petition and confirmed the decision of the Director of Immigration (“the Director”) dated 29 July 2019 (“the Director’s Decision”), which refused the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

Amendment

3.  In Form 86, the applicant wrongly named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent when only the Board should be the putative respondent.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators/members of the Board and should not be named as a putative respondent at all.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because he would be at risk of serious harm from members of the political party Pakistan Muslim League (Nawaz) (“PML(N)”), if he were to be refouled to Pakistan, as he had left PML(N) to join its rival party Pakistan Tehreek-e-Insaf (“PTI”).

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

(1)  I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. 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.

(2)  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.

(3)  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 those evidence and ruled otherwise.

(4)  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.

(5)  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.

(6)  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. 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.

(7)  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.

(8)  I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.

9.  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.

Oral hearing

10.  The applicant requested for an oral hearing and his case was heard on 29 April 2025.

11.  At the hearing, the applicant said that he had nothing to add to the grounds mentioned above, but he had married a Hong Kong resident in September 2024 and applied for residency in Hong Kong.  He asked this court to allow him to stay in Hong Kong to wait for the result of the application for residency.

12.  When invited to elaborate on the grounds for judicial review that were annexed to his Form 86, the applicant only said that he was still facing the same problems in his village and his whole family left the village because of the same problems too.

Discussion

13.  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.

14.  Paragraphs 2, 4 and 5 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 8 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, 3, 6 and 7 of the grounds are relevant to the Leave Application.

15.  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 1. 

16.  In any event, the Board did assess the applicant’s risk of right to life.  The Board found that the applicant was neither a member of PML(N) nor a member of PTI.  There was no reasonably credible account of events for the Board to draw inference that the applicant would reasonably likely be at risk of harm from PML(N) members/associates or the government, let alone his BOR 2 Risk.

17.  In paragraph 3 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. 

18.  Contrary to this assertion, the Board explicitly stated in the Board’s Decision that in its evaluation of the applicant’s potential risk of harm, the applicant’s personal encounter was of prime importance.  The current state of affairs in the applicant’s hometown was relevant to indicate the possible risk the applicant might likely face on his return.  The Board did discuss the applicant’s family background and his case in detail.  The Board however, did not accept that there was any probable truth on the applicant’s core contentions that he had been a PML(N) member and subsequently changed to become a PTI member.

19.  The applicant further alleged in paragraph 3 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. 

20.  In fact, the Board did not make any finding that the police in Pakistan would not be able to protect the applicant.  The Board only noted that corruption and inefficiency were problems in Pakistan, but one had to see if the applicant would personally be at risk.  The Board found that the applicant would not be at risk of persecution from the Pakistani government if the applicant were to support PTI, as PTI was then the major political party of the country.

21.  In paragraph 6 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.

22.  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.

23.  In paragraph 7 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.

24.  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.

25.  The applicant’s assertions at the oral hearing before this court that he was waiting for the result of his application for residency and that his whole family had left his home village are irrelevant to the Leave Application.

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

27.  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).

28.  In assessing the applicant’s appeal, the Board held an oral hearing on 18 October 2019.  The Board found that the applicant’s involvement with PML(N), if any, was peripheral, and that the applicant’s purported account of setting up a PTI office with some unknown PTI members had no appeal to reasonable common sense.  In light of the incoherent account on the applicant’s core contentions, the Board did not accept the applicant’s case that he was a PML(N) member and subsequently changed to become a PTI member.  As such, the Board did not find that there was any probable truth in his account that he had been assaulted or was being hunted down by PML(N) members for his change of political support.  Thus, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

29.  The Board did consider availability of state protection even though the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety.  The Board found that if the applicant were to support PTI, there would not be any risk of persecution from the Pakistani government as PTI was the major political party.

30.  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).

31.  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.

32.  The assessment of evidence, COI materials and risk of harm were primarily within the sole ambit of the Board.  The Board is entitled to come to its own conclusion.  If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.  This court finds no errors of the Board in reaching its decision based on all the evidence before it. 

33.  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. 

34.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

35.  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