RE HAIDER HASNAIN

CACV 220/2025, [2025] HKCA 1013

On appeal from [2025] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2025

(ON APPEAL FROM HCAL NO. 3739 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

A.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Philips Wong (the “Judge”) given on 14 April 2025 ([2025] HKCFI 1239) dismissing his application for leave to apply for judicial review.  The intended judicial review was in respect of a decision of the Torture Claims Appeal Board (the “Board”) dated 5 December 2019, which dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 27 March 2018 rejecting his non-refoulement protection claim.

2.  The applicant’s appeal was scheduled to be heard on 23 October 2025.  Despite the directions made by the Court on 22 August 2025 and communicated to the applicant by letter of 25 August 2025 (the “Directions”), the applicant failed to lodge written submissions by the stipulated time.  Accordingly by [5] of the Directions, the hearing of the appeal was vacated. The Court now deals with this appeal on paper. 

B.  Background

3.  The applicant is a national of Pakistan.  He is now aged 37.  He entered Hong Kong illegally on 18 March 2017.  He surrendered to the Immigration Department on 20 March 2017.  He raised a non-refoulement claim by written significations dated 30 March 2017 and 12 April 2017.

4.  The basis of the applicant’s claim was set out at [7] of the Director’s decision and [27] to [41] of the Board’s decision.  In gist, the applicant claimed that he and his family are all Sunni Muslim and supporters of a Sunni religious organisation named Sipha-e-Sahaba Pakistan (“SSP”).  He claimed that since August 2016, he had been attacked by followers of Deobandi, a Shia religious party which he refused to join.  He had reported the incidents to the police.  The police refused to help him.  Fearing for his safety, he left Pakistan on 13 February 2017.

C.  The Director’s Decision

5.  The applicant’s claim was made under the grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].  By his decision dated 27 March 2018, the Director rejected the applicant’s non-refoulement claim on all grounds.

D.  The Board’s Decision

6.  The applicant appealed to the Board.  A hearing took place on 24 October 2019.  The applicant testified with the assistance of a Pakistani Punjabi interpreter.  By its decision given on 5 December 2019, the Board dismissed his appeal.

7.  In summary, the Board found no credible evidence to support the applicant’s claim that he was a supporter of SSP.  The applicant’s assertion that Deobandi is a Shia party is inconsistent with the Country of Origin Information (“COI”) indicating that it was in fact a strand of Sunni Islam belief rather than a religious party ([47] and [50]).  The Board found that the applicant had suffered no harm in the past and that, having regard to the relevant COI, reasonable state protection would be available to him ([54]).  The Board concluded that the applicant had failed to establish a case for non-refoulement protection under any of the applicable grounds.

E.  The Judge’s Decision

8.  On 16 December 2019, the applicant filed a Form 86 and sought leave to apply for judicial review against the Board’s decision.  In the Form 86, he stated that the Board’s decision was wrong and unfair, that he had been tortured many times, and that his family was still in trouble.  He further stated in his affirmation that internal relocation is difficult for him as he is not able to sustain himself and his family.  In respect of the Board’s finding that Deobandi is the same as Sunni, he said that “its alright because I dont [sic] have too much knowledge about it.”

9.  The Judge heard the leave application on 11 March 2025.  By Form CALL-1 dated 14 April 2025, the Judge dismissed the application and gave his reasons at [6] to [12] as follows:

“6. In the Form, the Applicant alleged that the Board’s Decision was wrong and unfair. He said the Board refused his case without any valid reason. He said he was tortured many times and his family was still in trouble in Pakistan. In the supporting Affirmation, the Applicant said he would be killed if he was to return to Pakistan. He also criticized the Board’s Decision on relocation. Last but not least, he challenged the Board’s view that “Sunni” and “Deobandi” are the same.

7. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. In so far as the Applicant claimed that the Board did not provide reasons for the refusal, this is plainly incorrect. The Board’s Decision was comprehensive with adequate reasons provided.

8. In respect of the alleged “torture” incidents, the Board had clearly considered such evidence but rejected it for the reasons explained (see paragraphs 52 to 53 of the Board’s Decision).

9. The Applicant’s criticism on the Board’s Decision on relocation is also misconceived. The Board did not find it necessary to address the question of relocation, as it had already found that there is no real risk of harm if the Applicant returns to Pakistan (see paragraph 71 of the Board’s Decision).

10. In relation to the criticism that the Board treated “Sunni” as the same as “Deobandi”, it should be noted that the Board did not say the two are the same. The Board referred to some COI materials which indicated that the Deobandi was a strand of Sunni Islam belief, rather than a religious organization or party, and that it was Sunni, not Shia (see paragraph 48 of the Decision). The Applicant has adduced no evidence to contradict such COI materials. The Applicant also admitted that he knew nothing about Deobandi (see paragraph 49 of the Board’s Decision). There is nothing wrong with the Board’s observation in this regard.

11. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

12. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.”

F.  Grounds of appeal

10.  By notice of appeal dated 23 April 2025, the applicant appealed against the Judge’s decision.  He failed to provide therein any ground of appeal.  He simply said that he disagreed with the decisions of the Director and the Board, and that “I do not think my case determined.” 

F.  Our reasons for judgment

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In summary, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

12.  Applying the established legal principles set out above, we are of the view that the appeal has no merit.  Our reasons are as follows:

(1)  It is well-established that the Board’s decision supersedes that of the Director and represents the final decision on the claim at the end of its processing: see Re Moshsin Ali [2018] HKCA 549 at §45.  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.  Hence, insofar as the applicant now by his notice of appeal seeking to appeal against the decision of the Director, he is bound to fail;

(2)  The applicant has failed to identify any error in the Judge’s decision, and has failed to state with particulars how his case had been unfairly determined.  We have separately considered the Board’s decision.  We do not discern any legal error, irrationality or procedural irregularity.  We agree with the Judge that there is no proper basis for disturbing the Board’s findings and conclusions;

(3)  The intended judicial review has no reasonable prospect of success.

G.   Order

13.  For the above reasons, we dismiss this appeal.