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HCAL 450/2021
[2026] HKCFI 1762
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 450 OF 2021
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BETWEEN
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Ali Akhtar |
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”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 February 2021”.
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 30 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 12 February 2021.
2. However, the Board only made one decision dated 18 February 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 December 2019 (“the Director’s Decision”). The applicant also confirmed at the oral hearing before this court on 26 February 2026 that the Board’s Decision should be the subject matter of the Leave Application, and the date of decision stated in Form 86 was just a mistake. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000450_2021_files/the_Board's_Decision.pdf
3. The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
4. The applicant named the Board as the putative respondent in Form 86 but spelt the Board’s name wrong.
5. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 18 February 2021”.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because he had problems with people affiliated with the Tehreek-e-Taliban Pakistan (“Taliban”) party in his home area from around 2009. In particular, he was troubled by a person named Shenshah who was alleged to be a Taliban commander in Swat City. The applicant claimed that, if refouled to Pakistan, he would be harmed, ill-treated or killed by Shenshah and the Swat Taliban people under Shenshah’s command.
Oral hearing
9. The applicant requested for an oral hearing and his case was heard on 26 February 2026.
10. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that his life would be in danger if he were to return to his home country. He confirmed that his problems had been presented to the Board for assessment. He complained that the Board was not doing justice to him as he had repeatedly told the Board that his life was in danger, but the Board did not think it was.
11. He added that there were some enemies appearing in his home area one week before the hearing, and he wanted to show this court a news report about the incident. However, as the Board could not have been aware of the incident, which only happened last week, this court explained to the applicant about the role of the court in a judicial review, and it was not for this court to receive new evidence concerning his non-refoulement claim.
Grounds for judicial review
12. 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).
13. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 30 March 2021.
14. What the applicant said at the oral hearing before this court about his life being in danger was the basis of his non-refoulement claim, which had been presented to the Board. It did not constitute any valid ground for his intended judicial review.
Discussion
15. First of all, the applicant’s allegation at the oral hearing before this court that his enemies were in his home area one week ago was not presented to the Board when it was dealing with the applicant’s appeal/petition. 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.
16. 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.
17. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to receive new evidence and re-assess the applicant’s non-refoulement claim.
18. The applicant’s problems with his enemies had already been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
19. 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).
20. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
21. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 23 September 2020 and the applicant was present. Thus, the applicant was given the chance to present his case to the Board in person.
22. The Board accepted the basic facts of the applicant’s case, including that he was subjected to various threats from Shenshah and his people over the course of several months, in respect of which he had been harassed by them and also physically injured. The Board also accepted that the applicant still feared Shenshah and his people and subjectively believed that they would harm him if he were to see them again.
23. However, the Board was not satisfied that the supporting documents produced by the applicant to support the medical issues he had raised in his non-refoulement claim were authentic. The Board found it surprising that given the severity of the applicant’s claimed injury, namely that he had been shot twice in an encounter with his enemies in 2009, that there was no reference at all to his having been shot.
24. Further, as can be seen in paragraph 43 of the Board’s Decision, the Board found no, or no reliable evidence to show (and the Board did not accept) that (1) Shenshah and his people would harm or kill the applicant if he were to return to Pakistan; (2) the applicant faced risk throughout Pakistan; (3) the applicant suffered injuries to the required severity; and (4) the state of Pakistan was unwilling to help the applicant for a Convention reason.
25. In fact, the applicant accepted at the Board’s hearing that his issues with Shenshah and his people were personal matters with no government involvement. The Board also found that Shenshah and his people were non-state actors in respect of the applicant’s situations, and the ill-treatment they inflicted upon the applicant was not for a Convention reason. The issue of state acquiescence did not arise in the circumstances of the applicant’s case.
26. Further, the Board found from extensive, fully-referenced country of origin information (“COI”) that the Pakistan police were held to high standards in serving the public. At the same time, as to the threats from Shenshah and his people, there were key institutions in Pakistan on tackling terrorist activities. The applicant did report Taliban activities to the Pakistan army in the past with success. The fact that he did not choose to seek any state protection regarding the threats from Shenshah and his people did not suggest that state protection was not available to him. The Board considered that there would be sufficient state protection available to the applicant if he were refouled to Pakistan.
27. In view of its findings as summarised above, the Board noted that it was not strictly necessary to deal with the question of internal relocation for the applicant. However, the Board did consider it as a matter of caution.
28. The applicant accepted at the Board’s hearing that his problems were localised within his home area. It was not disputed that he had lived in various locations around Pakistan without anyone locating him or any Taliban network being engaged. The Board considered relocating to cities such as Karachi or Hyderabad was a viable option for the applicant, being able-bodied with experience working as a driver. The applicant had not experienced any impediment in either place, which were sufficiently distant from the applicant’s home area. The chances of Shenshah and his people travelling so far to personally target him would be further reduced.
29. The Board thus concluded that the applicant was unable to make out his claim for non-refoulement protection on all the applicable grounds under the USM.
30. The assessment of evidence, COI and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
31. 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.
32. 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
33. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
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: 25 March 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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16605/19/12/71/P3260
Director of Immigration
Putative interested party’s ref. no.: QA T/C 824/19 (formerly RBCZ 10575/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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