ANWAR NASEER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1987/2020

[2025] HKCFI 5096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1987 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 interested party be amended to “Director of Immigration”. 

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 5 October 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 10 November 2017 (“the Board’s 2^nd Decision”).

2.  The Board’s 2^nd Decision was to assess the applicant’s claim based on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”). The Board found that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) including the right to life under Article 2 of HKBOR being violated upon his return to Pakistan. Accordingly, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 20 January 2017.

3.  The Director had previously on 29 September 2014 assessed and rejected the applicant’s claims for non-refoulement protection based on the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4], which was affirmed by the Board’s decision on 15 July 2015 (“the Board’s 1^st Decision”).

4.  Hence, the applicant’s claim for non-refoulement protection based on the other three grounds had already been disposed of and it was not necessary for the Board to re-assess the applicant’s claim on these grounds again in the Board’s 2^nd Decision.

5.  Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001987_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001987_2020_files/2nd_Board's_Decision.pdf

Amendments

6.  The applicant named the Board as both the putative respondent and the putative interested party in Form 86.

7.  In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

8.  Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

9.  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 1^st Decision and the Board’s 2^nd Decision, which can be viewed in the hyperlinks above.

10.  In sum, the applicant claimed for non-refoulement protection because if returned to Pakistan, he feared he would be harmed or killed by four Pakistan Muslim League-Q (“PML-Q”) members namely Raja Shahzad Anwar, Raja Muhammad Anwar, Raja Sajid Pervaiz and Raja Tariq (collectively called “the four PML-Q members”) since they wanted to stop him from persuading people to vote for the Pakistan Muslim League-N.

Late application

11.  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 2^nd Decision was made.

12.  However, the applicant filed Form 86 on 5 October 2020, which was more than 2 years and 10 months after the Board’s 2^nd Decision (made on 10 November 2017). The applicant was hence late for more than 2 years and 7 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.

13.  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.

14.  The applicant did not make any application for extension of time when he filed the Leave Application. In the annex to his supporting affirmation dated 5 October 2020, he stated that he filed the application late because he was married to a Hong Kong woman and was applying for dependent visa. The physical condition of his wife was not good and when he heard that his appeal/petition had been refused, he needed to apply for the leave application.

15.  At the oral hearing before this court on 12 August 2025, when this court asked the applicant for the reason for the delay, he merely said that he got married and the mental state of his wife was not stable.

16.  A delay of more than 2 years and 7 months is very substantial and the explanation given by the applicant is not satisfactory. The fact that he got married and the fact that his wife’s physical and mental conditions were not good cannot explain the delay for such a long time.

17.  Moreover, as discussed below, there is no merits of the intended judicial review at all. 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.

18.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

Oral hearing

19.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 12 August 2025.

20.  At the hearing, when this court asked the applicant to elaborate on the grounds for his intended judicial review that he stated in the annex to his affirmation, he replied that he did not want to do so as he had stated everything there.

Grounds for judicial review

21.  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).

22.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86.

23.  In the annex to his supporting affirmation, he merely stated that the Board failed to consider the fear that he would face in his country and his claim under BOR 2 Risk.

24.  As aforesaid, the applicant did not elaborate on those grounds at the oral hearing before this court.

Discussion

25.  First of all, 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, the applicant’s mere allegation that the Board failed to consider the fear that he would face in his country and his claim under BOR 2 Risk cannot assist him.

26.  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).

27.  Thus, this court will examine and scrutinize the Board’s 2^nd 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.

28.  In assessing the appeal by the applicant, the Board held an oral hearing on 6 October 2017. The applicant was present and was given the chance to present his case to the Board in person.

29.  As can be seen from the Board’s 2^nd Decision, the applicant did not respond to the Director’s invitation to submit additional facts which he felt relevant to his non-refoulement claim on all applicable grounds including his absolute and non-derogable rights under the HKBOR including his right to life under Article 2. His non-refoulement claim on the ground of BOR 2 Risk was then assessed and rejected by the Director on 20 January 2017.

30.  At the Board’s hearing which was intended to enable the applicant to supplement whatever evidence he felt he had not disclosed in respect of BOR 2 Risk, the applicant only told the Board that he needed time to submit more documents without telling the Board what documents he had. He further said that his family was tortured and if he were to return, he would be tortured as well.

31.  As aforementioned, the applicant’s Torture Risk together with BOR 3 Risk and Persecution Risk had already been fully assessed and rejected by the Board. In the absence of any new evidence, the Board found that the applicant had failed to establish a personal and real risk of right to life under BOR 2 being violated upon his return to Pakistan.

32.  This court notes from the Board’s 1^st Decision that the applicant’s Torture Risk, BOR 3 Risk and Persecution Risk had all been fully analyzed. The Board found the applicant’s evidence not convincing nor credible and sometimes illogical and unreliable. The findings in support of this conclusion were laid out in paragraph 20(a)-(g) of the Board’s 1^st Decision.

33.  Moreover, even on the applicant’s own evidence, he had never been attacked by the four PML-Q members who were not government officials. The threats, if any, were not for any of the purposes set out under section 37U(1) of the Immigration Ordinance or for a Convention reason. Reasonable state protection was available to the applicant and internal relocation was also a viable option for him.

34.  The applicant had repeatedly asked for time to submit further documents since his first appeal to the Board. The Board found that to be the applicant’s tactic to delay the processing of his case, which was inconsistent with someone who genuinely wanted to apply for protection.

35.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

36.  Having rigorously examined the Board’s 2^nd 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 BOR 2 Risk 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 2^nd Decision. The Board’s 2^nd Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

37.  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

38.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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