BUTT NASEER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1482/2021

[2026] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1482 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.  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 25 October 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 29 April 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/HCAL001482_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 July 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Late application

3.  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 Decision was made.

4.  However, the applicant filed Form 86 on 25 October 2021, which was more than 5 months after the Board’s Decision (made on 29 April 2021). The applicant was hence late for more than 2 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.  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.

6.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

7.  The delay of more than 2 months is not insubstantial, and there is no reason for this court to extend the time for the applicant to make the application when no explanation was given by the applicant. More importantly, there is no merits of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

8.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he, being a famous and loyal supporter of the Pakistan Tehreek-e-Insaf (“PTI”), feared for the safety of his life due to political conflict with the people of the Pakistan Muslim League (Nawaz) (“PML(N)”) in his home area. The applicant also claimed to fear arrest by the police for a false murder case.

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 30 April 2026. The Notice of Hearing that was sent to the applicant’s reported address was returned to this court by post with the remark “Refused”. However, the Director confirmed by his letter dated 6 May 2026 that the applicant’s reported address remained the same.

12.  Thus, this court takes the view that the Notice of Hearing was properly served at the applicant’s last known address and the Leave Application can be dealt with in the absence of the applicant.

13.  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.

14.  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

15.  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).

16.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 25 October 2021.

Discussion

17.  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).

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

19.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 26 February 2019. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

20.  As can be seen from the Board’s Decision, the Board had carefully analyzed the applicant’s claims and had given due consideration to his claim that his memory was adversely affected by a previous injury on his head. The Board noted that there was no medical evidence before the Board to support the applicant’s claim that he was suffering from problems with his memory since a head injury. The Board did not accept that the applicant’s ability to recall details was adversely affected to a level that would adequately explain the serious and numerous discrepancies and omissions in the applicant’s evidence.

21.  The Board had laid out in full its findings on the applicant’s credibility and the credibility of his claims in paragraphs 82 to 123 of the Board’s Decision.

22.  In gist, the Board found that the applicant was not a witness of truth, and the Board was not satisfied that the applicant had told the Board the truth in relation to critical elements of his claims. On the evidence before it, the Board did not accept that (1) the applicant was a supporter or member of the PTI; (2) the applicant was involved in canvassing or that he organized or went to meeting or rallied in support of the PTI or that he was involved in strikes in support of the PTI; (3) the applicant was the subject to beatings and assaults as he had claimed; (4) the applicant was famous for his political activity; (5) the applicant was falsely accused of murdering a policeman/men or anyone else; and (6) the applicant left his home and went into hiding, and left Pakistan for the reasons he had claimed.

23.  Thus, the Board was not satisfied that anyone, including the police or people associated with the PML(N) had been looking for the applicant; or that anyone in Pakistan had or still have any adverse interest in the applicant. The Board did not accept that the applicant feared returning to Pakistan for the reasons he had claimed, or for any other reason. The Board did not find that there was a real risk anyone in Pakistan would harm the applicant for any of the reasons he had claimed, or for any other reason, if the applicant returned to his country.

24.  Given its findings, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan. The Board found that the applicant’s non-refoulement claim failed on all the applicable grounds under the USM.

25.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

26.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

27.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

28.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  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.

30.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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

31.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also 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