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HCAL 1719/2021
[2026] HKCFI 3417
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1719 OF 2021
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BETWEEN
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Azhar Abbas |
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. 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 20 December 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 16 December 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/HCAL001719_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 January 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed by Bao Khan (“Khan”) due to religious dispute.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 4 June 2026.
6. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he was safe in Hong Kong, and he confirmed that the Board’s Decision was correct.
Grounds for judicial review
7. 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).
8. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 December 2021.
9. What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either. He actually confirmed that the Board’s Decision was correct.
Discussion
10. 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).
11. Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
12. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 3 November 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.
13. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
14. The Board had laid out in paragraphs 19 to 20 of the Board’s Decision its findings on the credibility of the applicant and his case, and it is not necessary for this court to repeat the same here.
15. In gist, the Board found many parts of the applicant’s account as set out in his Non-refoulement Claim Form to be exaggerating, inconsistent with accounts he gave in other settings, and some even defied logic. The Board was not convinced that the alleged enmity existed between the applicant and Khan, at least not to the extent that Khan and his friend Waris wanted to kill the applicant. The Board was also not satisfied that there was any previous experience of violence on the applicant. The entirety of the applicant’s account that led to his claim for non-refoulement protection was not accepted, and the Board found that the risk of the applicant being subjected to torture, ill-treatment, arbitrary deprivation of life and persecution was low.
16. The Board had gone through extensive country of origin information (“COI”) and found that the applicant had avenues to seek redress if he was aggrieved by the treatment he might receive from Pakistani police.
17. Further, the Board believed that there were many places where the applicant could relocate in Pakistan should he continue to be fearful of staying at home.
18. Thus, the Board concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
19. The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decisions. The applicant’s alleged risks in his country had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decisions.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of June 2026
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( Gladys LEE )
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 his 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: 10/06/2026
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: 10/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17614/21/2/30/P3415
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 811/20 (Formerly RBCZ 48/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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