USAMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 337/2021

[2026] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 337 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 andoral submissions by the applicant in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 26 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 “MARCH 2021” and filed on 12 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)   “The Decision of the Director Of Immigration Dated 16 JULY 2020”; and

(2)   “The Decision of the Adjudicator Dated 26 February 2021”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 26 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 6 July 2020 (“the Director’s Decision”).

3.  It is clear that the second decision referred to in Form 86 is the Board’s Decision.  The applicant also confirmed at the oral hearing before this court on 15 January 2026 that the Board’s Decision is the only subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000337_2021_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“USM”).  Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

5.  In Form 86, the applicant named the Director and “The Adjudicator of The Non-Refoulment Claims Petition office approved to determine the applicant Petition” as the putative respondents.

6.  As it has been confirmed that the Board’s Decision is the only subject matter of the Leave Application, it is not necessary to name the Director as a putative respondent.

7.  Moreover, the adjudicator actually made the Board’s Decision in his capacity as a member of the Board.  Thus, only the Board should be the putative respondent.

8.  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. 

9.  The applicant named “Torture Claims appeal Board Non-Refoulment Claims Petition Office” as the putative interested party, when the Director should be so named.

10.  As mentioned, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision.

11.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 26 February 2021”.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by a loan shark named Raheem Taz (“RT”) and RT’s men due to non-payment of an outstanding loan to him.

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 15 January 2026.

15.  At the hearing, this court asked the applicant to elaborate on his grounds for the intended judicial review that were stated in his written submission annexed to his supporting affirmation dated 12 March 2021.  However, the applicant merely said that his friend prepared the grounds for him and he could not elaborate on them.  He also said that he had no other grounds to give.

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 did not state any grounds for his intended judicial review in his Form 86. 

18.  In the first part of his written submission that was annexed to his supporting affirmation, the applicant asserted some general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations.  Likewise, the applicant did not explain or give any particulars as to how those general grounds were applicable to his own case.

19.  In the second part of the said written submission under the heading “Standard grounds review”, the applicant asserted that the Board had erred in paragraphs 48 to 56 (of the Board’s Decision).  It seems that the applicant was saying it was not a valid reason for the Board to reject his claim because he did not mention at the Board’s hearing that his cousin tortured him as well.  He further challenged the Board’s finding on the viability of internal relocation by stating that he had already relocated in Pakistan but he was unable to support himself and to stay indoor most of the time.

20.  This court will deal with the aforesaid grounds as discussed below.

Discussion

21.  First of all, the first part of the applicant’s written submission only contained some general accusations against the Board without any particulars or any regard to his own situations.  They merely contained “key words” or standard accusations.

22.  The applicant complained that “the board had unlawfully fettered its discretion”, the Board’s Decision was “unreasonable or irrational” or “were a result of procedural errors or unfairness”, and the Board failed to apply high standards of fairness.  However, the applicant did not explain how or why the Board’s Decision was as alleged.  He also failed to give details as to how the Board failed to apply high standards of fairness in the determination of his claim.

23.  The applicant further complained that the hearing bundle which was all in English was provided to him without giving him sufficient time to prepare for his appeal before the Board.  It seems that the applicant was complaining about the lack of language assistance and time for preparation.

24.  However, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

25.  In fact, all the documents filed by the applicant in relation to the Leave Application were written in English.  This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.

26.  As to the applicant’s complaint about the lack of time for preparation, this court notes that the applicant first lodged his non-refoulement claim on 21 October 2019 and the Board heard his appeal on 27 October 2020.  Thus, the applicant had more than a year to prepare any materials he wished to submit to the Board for assessment of his non-refoulement claim.  In the first tier of the screening process, the applicant was assisted by the Duty Lawyer Service.  He also confirmed under oath that the basis of his case as set out in his Non-refoulement Claim Form (“NCF”) and clarified in his screening interview was true and correct.  The applicant cannot claim that he was not given enough time to prepare for his appeal.

27.  The applicant also accused the Board for having relied on sources of news which were not officially recognized or were hearsay or outdated, and resulted in groundless speculation that it would be safe for him to return to his home country.  Again, the applicant did not specify which pieces of country information that the Board relied on were as he alleged.

28.  In fact, this courts notes that the Board’s Decision did not contain much discussion on country of origin information (“COI”), save in paragraph 61 where the Board mentioned the area and population of Pakistan while dealing with the issue of internal relocation.  Clearly, the material relied on was fully referenced and update.

29.  The remaining assertion under this part was targeted at the Director.  Since the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the applicant’s complaint that the Director failed to consider the concept of extended acquiescence could not be used to challenge the Board’s Decision and can be simply ignored. 

30.  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”.  Thus, such general allegations cannot help the applicant at all.

31.  In the second part of the applicant’s written submission, the applicant seemed to suggest that it was not a valid reason for the Board to reject his claim because he did not mention at the Board’s hearing that his cousin tortured him as well.

32.  As can been seen from the Board’s Decision, the Board was fully aware of the applicant’s case, including his claimed threat from his cousins.  The Board had specifically asked the applicant to clarify if his fear was related to RT about the unpaid loan, or from his cousins due to his father’s land which they occupied and wanted.  The applicant was given the chance to present the threats from his cousins to the Board.

33.  However, the Board did not accept the applicant’s explanation as to why he did not mention in his NCF that his cousins had threatened to kill him.  This was a finding of facts exclusively within the purview of the Board.  The Board found the applicant’s account as to the reasons for seeking non-refoulement protection in Hong Kong to be unconvincing and devoid of all credibility.

34.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review, unless there are errors of law, procedural unfairness or irrationality in the finding.  The applicant failed completely to identify any of these in his written submission.

35.  Likewise, the applicant’s last ground in his written submission challenging the Board’s finding on internal relocation cannot assist him at all.  It was the Board’s finding that relocation to another area within Pakistan would appear to be a perfectly viable alternative open to the applicant in order to alleviate any genuine fear of returning to his home at Waisa Village.

36.  Moreover, the Board expressly mentioned in paragraph 63 of the Board’s Decision that the Director had referred to two places in Pakistan that the applicant could consider, namely Islamabad and Sukkur, and the Board adopted the comments of the Director regarding relocation.  In the Director’s Decision, the Director noted the applicant’s view on internal relocation including the applicant’s allegations that RT could locate him anywhere in Pakistan, Islamabad was very expensive and he could not afford to live there. 

37.  However, the Director’s assessment was that internal relocation alternatives were available and reasonable, and in particular, the Director found that it would be very difficult for RT to locate him in Islamabad given that it had such a large population and area, and a metropolitan region with tourism-centric like Islamabad might allow the applicant to earn a living over there.

38.  Since the Board had adopted the Director’s comments regarding relocation, the Board must have also found that RT could not locate the applicant easily and the applicant could earn a living in a metropolitan region like Islamabad.  Thus, the applicant’s allegations that he was unable to support himself and stay indoor most of the time had been considered but rejected by the Board.

39.  Thus, none of the accusations raised by the applicant in his written submission could establish any valid ground to challenge the Board’s Decision.

40.  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).

41.  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.

42.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 October 2020.

43.  Although the applicant was present and was given the chance to present his case to the Board in person, he told the Board that he did not wish to give evidence, saying that all he wished to say was already in his NCF.  The Board did however ask the applicant a number of questions to clarify his claims.

44.  The Board found the applicant’s account as to the reasons for seeking non-refoulement protection in Hong Kong to be unconvincing and devoid of all credibility.  The whole centerpiece of the applicant’s account from the date of his written submissions on 21 October 2019 and 1 November 2019 to the case as pleaded in his NCF had changed.

45.  The Board was satisfied that the whole case as put forward by the applicant regarding his reasons for coming to Hong Kong and seeking non-refoulement protection was disingenuous.

46.  The Board further found that the applicant’s allegations with regards to the events relating to RT were no more than bare assertions.  The Board concluded that the applicant was lacking in credibility and it was not persuaded even to the low standard required that the applicant suffered any threats or ill-treatment at the hands of RT and his men for the reasons he had stated.

47.  It is also the Board’s finding that even if the applicant’s evidence in relation to the facts within his own knowledge were assumed to be true, any assaults he might have been subjected to were not of the degree of severity required to establish a claim for non-refoulement protection.  The alleged ill-treatment did not involve any state acquiescence and was not for any of the Convention reasons.  

48.  As aforesaid, the Board explicitly stated that it adopted the comments of the Director regarding internal relocation for the applicant, which was found to be a viable alternative.

49.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.  The alleged danger that the applicant faced had been duly assessed but rejected by the Board.

50.  The assessment of evidence, COI and risk of harm was primarily within the realm 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 conclusion.

51.  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. 

52.  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

53.  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

Form CALL-1