ABBAS NASAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 415/2021

[2026] HKCFI 1454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 415 OF 2021

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 the applicant being absent in open court;

1.  On this court’s own motion, the name of the 2^nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the second decision in respect of relief is sought be amended be “Torture Claims Appeal Board’s decision dated 8 March 2021”.

2.  The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 10 July 2018 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 8 March 2021 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 23 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The Decision(s) of the Director of Immigration dated 10^th July 2018”; and

(2)  “The Decision of the Adjudicator dated 8^th March 2021”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 8 March 2021 (“the Board’s Decision”) in respect of the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 10 July 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000415_2021_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection in Hong Kong were not made out on any of the applicable grounds (except Torture nowrap="nowrap">[1]) under the Unified Screening Mechanism (“USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

4.  The applicant had previously made a torture claim and his claim was rejected by the Director on 23 January 2014. The applicant did not appeal against that decision. Thus, the applicant’s Torture nowrap="nowrap"> had been finally disposed of, and it was not necessary for the Board to re-assess the same.

Amendments

5.  In Form 86, the applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2^nd putative respondent. However, the adjudicator actually made the Board’s Decision in her capacity as a member of the Board. Thus, the 2^nd putative respondent should be the Board.

6.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

7.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

8.  Thus, on this court’s own motion, the name of the 2^nd putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the second decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 8 March 2021”.

The intended judicial review in respect of the Director’s Decision

9.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

10.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.

The applicant’s case

11.  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.

12.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be subjected to honour killing by Shafqat Qureshi (“Qureshi”), who was his employer and the father of his girlfriend, and Azam, who was the local head of the panchayat, as he wanted to have a love marriage with his employer’s daughter.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 24 February 2026.

14.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

15.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

16.  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).

17.  The applicant annexed a document to his Form 86 with the title “Grounds on which Relief is sought”. The contents of this document were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Director’s and/or the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. As the applicant is relying on the grounds stated in this document to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

18.  First of all, some of the grounds that were asserted in the said document were directed at the Director. As mentioned above, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra). Hence, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will consider only those grounds directed at the Board in respect of the Board’s Decision.

19.  There are a total of 4 paragraphs in the said document. Paragraphs 2 to 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the applicant’s challenge in respect of the Board’s Decision.

20.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.

21.  In any event, the Board did assess the applicant’s risk of right to life. The Board did not accept the applicant’s argument that he would be deprived of his right to life as the panchayat had made the decision that he was to be punished. The Board did not consider that to be a legal ruling as the state of Pakistan had legislated and taken some action to counter such decisions by making them illegal. Therefore, it was not the state which was likely to impose any penalty on the applicant.

22.  Further, as the option of internal relocation was a real and viable one for the applicant, the Board considered that there would not be a real risk the applicant would be arbitrarily deprived of his life or be subjected to the death penalty if he was relocated to a different locality. Thus, the Board concluded that returning the applicant to Pakistan would not expose him to a real risk of a violation of his right to life so as to constitute a breach of BOR 2[2].

23.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, 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”.

24.  Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

25.  The applicant’s alleged danger in his home country had 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.

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 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 two oral hearings on 3 November 2020 and 26 November 2020 respectively. As the first hearing progressed, it became clear to the Board that the applicant was very uncomfortable using a female interpreter. The applicant explained that he would be much more comfortable speaking through a male interpreter as he was dealing with sensitive issues. The Board also asked if he was comfortable speaking with a female Board member, and the applicant confirmed that he was. The Board then decided to adjourn the hearing and reschedule it with a male interpreter. The Board continued to hear the applicant’s claims on 26 November 2020 with a male interpreter. Thus, the applicant was given the opportunity to present his case to the Board in person.

29.  As can be seen from the Board’s Decision, the Board accepted that the applicant was working as an accounts clerk for Qureshi from 2006. However, the Board was concerned with contradictory evidence given regarding the death of the applicant’s girlfriend and on balance did not accept that she had been killed because of those inconsistencies.

30.  The Board duly considered the applicant’s submissions regarding honour killings and his submissions that his love relationship violated the Muslim customs.

31.  The Board accepted, on the basis of some consistent evidence and claims, as well as country of origin information (“COI”), that the applicant’s relationship with his employer’s daughter and their running away together had endangered the life of the applicant and of his girlfriend. The Board also accepted that the applicant would be subjected to sanctions by a panchayat, and might well be severely punished or even killed if he were to return to his home locality.

32.  The Board found from COI that the Supreme Court of Pakistan held that the system of Jirgas and panchayats was in violation of the country’s international commitments and that any order or decision issued by such bodies was illegal or unconstitutional. However, the Board assessed that the applicant could not rely on effective state protection if he was at risk of harm by his girlfriend’s family or members of his community, particularly those who were members of the panchayat, if he were to return to his home locality.

33.  The Board considered the availability of state protection generally in Pakistan in length, especially if the applicant were to resettle in a different locality (see paragraphs 84 to 89 of the Board’s Decision). The Board also considered the viability of internal relocation (see paragraphs 90 to 110 of the Board’s Decision) and the reasonableness of internal relocation for the applicant (see paragraphs 111 to 113 of the Board’s Decision).

34.  As can be seen from the above paragraphs in the Board’s Decision, the Board had given full and detailed reasoning as to why it considered that there was state protection generally available to the applicant should he require it, especially if he were to resettle in a different locality.

35.  Similarly, the Board had carefully considered very extensive, fully-referenced, generally update and relevant country information and the circumstances of the applicant to conclude that it did not consider internal relocation to a city far away from his home, such as Karachi, to be an unduly harsh requirement in his circumstances. The Board was of the view that it would be very difficult to locate the applicant there, as there was limited capacity to find him in another locality given limited official and unofficial resources available to locate individuals.

36.  Moreover, the applicant had worked in administration and accounts as well as farming. The Board found no reason why the applicant could not find work in administration or accounts, particularly in a large city such as Karachi where he was assured of a level of anonymity. Thus, the Board had addressed the applicant’s concern that he had to live in hiding if he were to be relocated. The Board considered that the applicant had demonstrated his capacity and ability to relocate and adapt in a city such as Karachi and settle there.

37.  Since internal relocation was a real, viable and reasonable option for the applicant to avoid any genuine risks, the Board found that the applicant had failed to demonstrate that he faced BOR 2 nowrap="nowrap">[3], BOR 3 nowrap="nowrap">[4] or Persecution nowrap="nowrap">[5] warranting non-refoulement protection, despite that the applicant might face real harm and persecution without sufficient state protection in his home locality.

38.  The finding of facts, including the assessment of evidence, COI and risk of harm, 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.

39.  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.

40.  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

41.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision 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

Form CALL-1