SHAH SYED SHAHID HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1992/2020

[2025] HKCFI 5864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1992 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”, the name of the putative interested party be amended to “Director of Immigration” and the decisions in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decisions dated 9 February 2017 and 20 July 2020”.

2.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decisions dated 9 February 2017 and 20 July 2020 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 a decision described as follows:-

“THE PETiSiON TEAMS (SECURiTY BUREAU) GAVE DICiSiON ON MY U.S.M APPEAL) AT 22 AUG 2014 AND I AM NOT -SATiSEFiED iN it, BECAUSE -STiLL I HAVE PROBLEM iN MY COUNTRY BY MY ENiMiES. If - GO MY LiFE WiLL BECOME DANGER)”

2.  The applicant annexed to his supporting affirmation dated 5 October 2020 a copy of a decision by the Torture Claims Appeal Board (“the Board”) dated 21 March 2016 in respect of an appeal/petition by another non-refoulement claimant. The name of the claimant in that case is “Mr SIDHU Davinder Singh”, which is completely different from the applicant. The nationality of that claimant is Indian, whereas the applicant’s nationality is Pakistani.

3.  It is clear that the applicant attached a wrong decision of the Board to his supporting affirmation. When this court asked the applicant about this wrong decision at the oral hearing before this court on 18 November 2025, the applicant simply said that he did not know why a wrong decision was attached to his affirmation.

4.  The Board in fact made two decisions in respect of the applicant’s non-refoulement claims. The first one was dated 9 February 2017 (“the Board’s 1^st Decision”), which dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 August 2014 (“the Director’s 1^st Decision”). In the Director’s 1^st Decision, the Director rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).

5.  The Board’s second decision was dated 20 July 2020 (“the Board’s 2^nd Decision”), which dismissed the applicant’s petition against the Director’s further decision dated 12 April 2017 (“the Director’s 2^nd Decision”). In the Director’s 2^nd Decision, the Director rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk[4].

6.  At the hearing before this court on 18 November 2025, the applicant confirmed that both the Board’s 1^st Decision and the Board’s 2^nd Decision were the subject matters of the Leave Application.

7.  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/HCAL001992_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001992_2020_files/2nd_Board's_Decision.pdf

Amendments

8.  In Form 86, the applicant did not name the putative respondent and the putative interested party correctly. The Board should in fact be the putative respondent and the Director should be the putative interested party.

9.  As aforesaid, the applicant confirmed that the decisions in respect of which relief is sought in the Leave Application were the Board’s 1^st Decision and the Board’s 2^nd Decision.

10.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration” and the decisions in respect of which relief is sought in the Leave Application are amended to “Torture Claims Appeal Board’s decisions dated 9 February 2017 and 20 July 2020”.

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 Decisions were made.

12.  The Leave Application in respect of the Board’s 2^nd Decision was made within time, but not the Board’s 1^st Decision. The applicant filed Form 86 on 5 October 2020, which was more than 3 years and 7 months after the Board’s 1^st Decision (made on 9 February 2017). The applicant was hence late for more than 3 years and 4 months in making the Leave Application in respect of the Board’s 1^st Decision, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application in respect of this decision.

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 and provided no explanation for the delay when he filed the Leave Application.

15.  At the oral hearing before this court on 18 November 2025, the applicant said that he did not receive any letter from the Immigration Department about the Board’s decisions. The Immigration Department was closed due to the Covid-19 pandemic at the material time and he was asked to sign recognizance every 3 months. When he was informed in 2020 about the decisions, the Immigration officer advised him to file an application for leave to apply for judicial review within 4 weeks.

16.  The delay of more than 3 years and 4 months is very substantial and the explanation provided by the applicant is far from satisfactory. This court notes that the Covid-19 pandemic did not even exist in 2017 when the Board’s 1^st Decision was made. The reason why he did not receive the Board’s 1^st Decision in time remained unexplained. More importantly, there is no merits of the intended judicial review regarding both the Board’s 1^st Decision and the Board’s 2^nd Decision as discussed below.

17.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application in respect of the Board’s 1^st Decision, even if an application for extension of time was made. The Leave Application in respect of the Board’s 1^st Decision can therefore 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 in respect of both decisions of the Board.

The applicant’s case

19.  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 two decisions, which can be viewed in the hyperlinks above.

20.  In sum, the applicant raised his non-refoulement claim because if refouled to Pakistan, he would be seriously harmed or killed by three of his schoolmates, Fani, Jani and Mani (“the Three”). The applicant and his family were active members of a religious organization of Shia named Fiqa-e-Jafria (“FJ”). The applicant claimed that the Three were Sunni Muslims and belonged to an extremist terrorist group of the Sunnis called Sipah-e-Sahaba (“SS”), which would harm and kill people with sectarian differences.

Oral hearing

21.  The applicant requested for an oral hearing of the Leave Application but he was absent at the hearing on 19 August 2025.

22.  By a letter dated 21 August 2025, the applicant explained his absence by mentioning that he was not feeling well on the day before the scheduled hearing and he went to hospital. His request for another hearing was acceded to and his case was heard on 18 November 2025.

23.  As aforesaid, at the hearing on 18 November 2025, the applicant failed to explain why he annexed a Board’s decision regarding another person to his supporting affirmation. After clarification, the applicant confirmed with this court that the Leave Application was in respect of the Board’s 1^st Decision and the Board’s 2^nd Decision.

24.  When this court asked the applicant to give his grounds for the intended judicial review, he merely said that he did not know, as he did not have any experience in this regard. He added that he was having medical treatments regarding health problems and he was waiting for a surgery. He would return to his country after he finished the medical treatments and the surgery in Hong Kong.

Grounds for judicial review

25.  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).

26.  However, the applicant only mentioned in Form 86 that he was not satisfied with the decision, he still had problem in his country by his enemies and his life would be in danger.

27.  In his supporting affirmation dated 5 October 2020, the applicant stated that his non-refoulement claims were rejected because he was unable to submit any supporting documents, but it was true that he had problems in his country by his enemies who were against his Shia sect and he would try his best to obtain his document to prove that.

28.  As aforesaid, the applicant did not advance any grounds at the oral hearing before this court for the intended judicial review. He just wanted to stay in Hong Kong to have medical treatments and surgery, which was not a ground for judicial review at all.

Discussion

29.  First of all, the applicant’s alleged danger relating to sectarian disputes had already 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.

30.  His need for medical treatment and surgery was not presented before the Board. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

31.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

32.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review. His allegation that he would try his best to obtain his document to prove his problems cannot help him.

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, supra).

34.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decisions for any errors of law, procedural unfairness or irrationality.

35.  This court will first deal with the merits of the applicant’s intended judicial review against the Board’s 1^st Decision, which dealt with his appeal/petition on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk.

36.  In assessing the appeal/petition by the applicant against the Director’s 1^st Decision, the Board arranged an oral hearing on 3 August 2015. Thus, the applicant was given the chance to present his case to the Board in person. However, the applicant failed to attend the Board’s hearing, did not offer any explanation for his absence and did not contact the secretariat of the Board thereafter. The Board considered that it was only proper to proceed with the claim to its conclusion. This court finds nothing wrong for the Board to proceed to determine the applicant’s appeal/petition based on all the materials before it when the applicant was absent at the oral hearing.

37.  The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.

38.  As can be seen from the Board’s 1^st Decision, the Board noted that SS was once banned by the Pakistan government as terrorist group, but the applicant failed to substantiate his contention and belief that the Three in fact belonged to that group. The Board considered that the conduct of the Three towards FJ activities did not show that they were terrorists. There was also nothing to show that their activities were pre-meditated or organized.

39.  As to the bus incident that the applicant claimed to have happened and the subsequent attempted attack by the Three on him, the Board did not accept that such incidents happened. It followed that the Board did not accept that the Three were looking for him uttering death threats after he left. The Board concluded that when the applicant subsequently left his country, it was not for the reasons he claimed.

40.  The Board also considered that, if contrary to its findings, the Three was looking for the applicant to do him serious harm and to kill him, their motivation to do so would be much less than when he left the country since many years had elapsed. Moreover, the Three would need substantial resources and effort to locate the applicant in such a vast country with such a huge population if the applicant relocated to another area. The applicant should have many options for relocation upon refoulement.

41.  As the Board found that the applicant had not established that he would be at risk of physical or mental harm he claimed to fear from the Three or any such harm warranting non-refoulement protection on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk, the Board dismissed the applicant’s appeal/petition.

42.  In respect of the applicant’s petition against the Director’s 2^nd Decision which dealt with the applicant’s BOR 2 Risk, this court notes that the Board was of a different composition and the Board did not hold a hearing to assess the applicant’s petition. The Board’s reasons for not having an oral hearing were laid out in details in paragraphs 5 to 7 of the Board’s 2^nd Decision. Simply put, the Board found that there was no dispute in facts and in law that required an oral hearing for its disposition, and the Board considered that there would be no procedural unfairness to the applicant if his petition was determined without an oral hearing.

43.  There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

44.  Thus, it was not a must for the applicant to have an oral hearing before the Board. The applicant submitted no new facts, information and materials in respect of his claim based on BOR 2 Risk. This court finds nothing wrong for the Board to decide not to hold an oral hearing.

45.  Having considered the applicant’s evidence as a whole, the Board found that the applicant had failed, on the facts as found, to prove that there was a genuine and substantial risk, as well as a personal risk of irreparable harm upon refoulement. Thus, the Board found that the applicant’s claim failed on the ground of BOR 2 Risk under the USM.

46.  The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decisions. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion in both the Board’s 1^st Decision and the Board’s 2^nd Decision.

47.  Having rigorously examined both the Board’s 1^st and 2^nd Decisions 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 1^st and 2^nd Decisions. The Board’s 1^st and 2^nd Decisions do satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions.

48.  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

49.  For reasons aforesaid, the Leave Application in respect of the Board’s 1^st Decision is dismissed for being made out of time and also for lack of merits. The Leave Application in respect of the Board’s 2^nd Decision is dismissed 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