AMEEN KHAWAJA v. TORTURE CLAIMS APPEAL BOARD

HCAL 370/2021

[2026] HKCFI 626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 370 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   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 17 March 2021, 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 26 February 2021 (“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/2021/HCAL000370_2021_files/the_Board's_Decision.pdf

2.  The applicant had previously made a non-refoulement claim in 2010 on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  The Director of Immigration (“the Director”) rejected his claim on 21 August 2014 (“the Director’s 2014 Decision”).

3.  The applicant lodged an appeal/petition against the Director’s 2014 Decision on 22 September 2014, which was out of time.  The Board in its decision dated 13 October 2014 refused to grant an extension of time for the applicant’s late filing of his appeal/petition, as the applicant had failed to provide special circumstances to justify his delay.

4.  Thus, the applicant’s Torture Risk, BOR 3 Risk and Persecution Risk were finally disposed of.

5.  The Director made a further decision on 11 June 2018 (“the Director’s 2018 Decision”), which rejected the applicant’s claim on the ground of BOR 2 Risk[4] under the USM.

6.  The Board’s Decision was dealing with the applicant’s petition against the Director’s 2018 Decision.

7.  The Board found that the applicant’s case did not indicate that he would reasonably likely be at risk of deprivation of his life in his country Pakistan.  Returning the applicant to Pakistan would not likely breach his Hong Kong BOR 2 rights.  Hence, the Board dismissed his petition and confirmed the Director’s 2018 Decision.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being killed or tortured by members of the political parties Muslim League Party or the Jamate Islamia Party (collectively “his Enemies”) since he had participated in the activities of the political party Pakistani Peoples Party (“PPP”). The applicant claimed that his Enemies had strong political backup and the police were working under them.

Oral hearing

10.  The applicant requested for an oral hearing and his case was heard on 15 January 2026.

11.  However, when this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he was not safe in his country.  He added that his whole body was burnt in a fire in Hong Kong in 2007 and he was still having treatments in Hong Kong.

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 advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 March 2021.  He merely stated in the affirmation that he would be killed by his enemy if he returned.

14.  What the applicant said at the oral hearing did not constitute any ground for the intended judicial review either.

Discussion

15.  First of all, the applicant’s risk from his Enemies had 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 a judicial review.

16.  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).

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

18.  In assessing the petition by the applicant, the Board held an oral hearing on 7 October 2020 but the applicant was absent.  On the applicant’s application, another oral hearing was held on 19 November 2020.  The applicant was present this time and was given the chance to present his case to the Board in person.  However, the applicant claimed that he could not recall what had happened in the past because he was burnt in a fire in 2007 in Hong Kong.

19.  As can be seen from the Board’s Decision, the Board had examined the applicant’s case and the documentary evidence he put forward with due care.

20.  The Board did not find that the applicant was a PPP member.  The Board considered that the letter submitted by the applicant to prove his work in the PPP, if genuine, could not be referring to the applicant for reasons laid out in paragraphs 58 to 60 of the Board’s Decision.  The applicant displayed a total ignorance of the political parties in his city, an unexplained truncated lack of memory, a lack of knowledge of the office of an important PPP figure Asif whom he said he had worked with for 10 years.

21.  Even assuming that the applicant had been kidnapped and assaulted in 2004, the applicant did not know who his assailants were.  Further, even assuming that the assailants had threatened him to leave his party, the applicant had left his hometown in 2004 and had not been in touch with Asif or other PPP members since then.  Hence, the applicant, if he was an imputed general supporter/worker, had been inactive for 16 years.  The Board did not find the applicant to be reasonably likely to be at risk of harm or be targeted for source of information about PPP or important PPP figures such as Asif by members/supporters of other political parties.

22.  Moreover, even assuming the applicant was at risk of harm in his hometown, the Board found that reasonable state protection was generally available in Pakistan.  Should reasonable state protection be unavailable to the applicant in his hometown Sialkot city, it would not be unduly harsh to expect the applicant to be able to relocate to other parts of his country such as Karachi or Lahore where he had previously lived and worked in.

23.  The Board also addressed the applicant’s claim that he had suffered injuries in the 2007 fire.  The Board found that health services were available within Pakistan.  Updated country of origin information (“COI”) indicated that public hospitals provided free healthcare to all citizens.  The facts of the applicant’s case did not indicate that he would reasonably likely be deprived of his right to life for him to be sent back to his country to carry on with his medical treatments in Pakistan.

24.  Thus, the Board concluded that the applicant’s case did not indicate that he would reasonably likely be at risk of deprivation of his right to life in Pakistan.

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

26.  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 ground, ie 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 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. 

27.  For the sake of completeness, this court noticed that the adjudicator of the Board, Ms Mary Yuen, signed the Board’s Decision as “Adjudicator of the Non-Refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of her capacity. 

28.  Ms Yuen was a member of the Board and she was determining the applicant’s petition in her capacity as a member of the Board.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to her.  She was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

29.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

30.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms Yuen was indeed a member of the Board and did have the power to determine the applicant’s petition.  It is just not right to name herself as an adjudicator of the Non-refoulement Claims Petition Office.

31.  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

32.  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

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