JAHANZAIB v. TORTURE CLAIMS APPEAL BOARD

HCAL 1705/2021

[2026] HKCFI 3181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1705 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 oral 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” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  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 16 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 12 March 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/HCAL001705_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 November 2018 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “the Adjudicator, Torture Claims Appeal Board, Non-refoulement Claims Petition Office” as the putative respondents and “the Adjudicator, Torture Claims Appeal Board” as the putative interested party.

4.  In fact, the adjudicator was just making the Board’s Decision in his capacity as a member of the Board. Only the Board should be the putative respondent and the Director should be the putative interested party.

5.  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.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

7.  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.

8.  However, the applicant filed Form 86 on 16 December 2021, which was more than 9 months after the Board’s Decision (made on 12 March 2021). The applicant was hence late for more than 6 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.

9.  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.

10.  The applicant did not explicitly make an application for extension of time when he filed the Leave Application. However, he did give his reason for late filing of the application in Form 86 and this court will treat it as an application for extension of time to file the Leave Application. The applicant stated in Form 86 that he did not get the Board’s Decision on time, he was informed by the Immigration Department on 13 December 2021 and he went to the Board to collect the Board’s Decision on 16 December 2021 and filed the Leave Application on the same day.

11.  Nevertheless, the applicant explained his delay differently at the oral hearing before this court on 21 May 2026. He first said that the delay was due to his kidney problem, which made him physically unfit to apply for judicial review. However, when this court asked him when he had the kidney problem, he said that he had that problem since 2016. Then he explained the delay by saying that he did not know the procedures. He said his friend helped him to make the Leave Application.

12.  A delay of more than 6 months is significant, and the explanations given by the applicant in Form 86 and at the oral hearing before this court were not consistent and were clearly not satisfactory. The applicant had given three different stories in explaining the delay. Ignorance of the court’s procedures is generally not an excuse. More importantly, there is no merit 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.

13.  The Leave Application can therefore be dismissed for being made out of time alone. Nevertheless, for the sake of completeness, this court will discuss the merits of the Leave Application below.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or even killed by his uncle due to a land dispute, which was started by his brother, Auragzaib, who asked the uncle to give him some land to build a house, but the uncle refused.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 21 May 2026.

17.  When this court asked the applicant to elaborate on the grounds that were contained in a document with the title “Grounds on which relief is Sought” annexed to his Form 86, the applicant merely replied that it was related to his problem with his uncle in Pakistan. He initially said that he wrote the grounds himself, but later said that someone wrote the grounds for him. When asked whether he could elaborate on the grounds, he simply said that there was nothing else and he would not appeal after this court’s decision.

Grounds for judicial review

18.  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).

19.  The applicant confirmed at the oral hearing before this court that he relied on the grounds stated in the said document with the title “Grounds on which relief is Sought”. However, those grounds 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 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. Nevertheless, as the applicant is relying on these grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

20.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He merely reiterated that he had a problem with his uncle in Pakistan, which was the basis of his non-refoulement claim.

Discussion

21.  First of all, the applicant’s problem with his uncle in Pakistan 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 an application for judicial review.

22.  As mentioned, all the grounds contained in the document with the title “Grounds on which relief is Sought” are very general. There are a total of 11 paragraphs in the document, all listed under the heading “(A) The respondent is in breach of procedural fairness in the following parts”.

23.  Paragraphs 1 and 9 only mentioned that it was trite that a hearing before the Board was a rehearing and that the Board should consider all the facts of the claim afresh. The applicant in fact did not raise any challenge with regards to this role of the Board.

24.  In paragraphs 2 to 5, the applicant simply stated some general accusations such as the Board’s Decision was unreasonable or irrational in the public law sense, the Board had unlawfully fettered its discretion, the Board failed to meet the greater care and duty owed to self-represented litigants, and the Adjudicator acted in a procedurally unfair manner, etc. The applicant failed to give any particulars as to how these general accusations were related to his own case.

25.  Similarly, in paragraph 6, the applicant just mentioned the fundamental human rights not to be subjected to torture, but did not specify how such assertion could advance his case.

26.  In paragraph 7, the applicant alleged that there was no indication that the adjudicator interacted with the facts of his claim, conducted any analysis of the supporting documents, or turned his mind to the applicant’s right to life under BOR 2.

27.  This allegation is simply not true. As can be seen from the Board’s Decision, the Board had duly considered every aspect of the applicant’s claims, including his fear of his uncle and the alleged attacks he encountered. The applicant was in fact allowed time to submit evidence in support of his claims, namely: (1) any title documents related to the land in dispute; (2) a copy of the First Information Report produced when the applicant made a complaint to the police about his uncle attacking him; and (3) the record of the civil claim against his uncle. The applicant did not produce the documents as requested, and provided no explanation for failing to do so. The fact that the Board found the applicant not at risk of being arbitrarily deprived of his life does not mean that the Board did not consider his BOR 2 Risk[1].

28.  The applicant complained in paragraph 8 that the Board had relied on source of news which was not officially recognized, or was simply hearsay. Likewise, he stated in paragraph 10 that the Board had relied on some cases which were outdated. However, the applicant did not specify which piece(s) of news/cases or country of origin information that the Board relied on were as what he asserted.

29.  In paragraph 11, the applicant merely stated that the Board’s Decision made him disappointed. It is not a ground at all.

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”.

31.  Thus, none of the matters that were contained in the document with the title “Grounds on which relief is Sought” 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, or were simply unfounded.

32.  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).

33.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

34.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 November 2020. The applicant was present and was thus given the chance to present his case to the Board in person.

35.  As can be seen from paragraphs 19 to 43 of the Board’s Decision, the Board had considered and assessed the applicant’s claims on all the applicable grounds under the USM.

36.  The Board found that the land dispute was begun by the applicant’s brother, and did not directly involve the applicant himself. The applicant failed to produce evidence in relation to the land in dispute, to support the existence of the civil claim or his report to the police about the alleged attack.

37.  Moreover, the Board found that the actor of potential harm, ie the uncle, was not a state actor. There was no evidence, even in the statements of the applicant, to suggest that he had been subjected to serious harm. The past treatment the applicant encountered did not rise to the minimum level of severity required for international protection.

38.  In assessing whether there was a sufficiency of protection for the applicant in Pakistan, the Board took into account that the applicant had not followed up on his complaint to the police about the assaults or the civil claim against his uncle. The applicant’s claim that the authorities were unable or unwilling to protect him was untested and therefore fanciful.

39.  Further, the Board had given full reasons in paragraphs 26 to 28 for its finding that internal relocation within Pakistan was a viable option to the applicant.

40.  Thus, the Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

41.  The finding of facts, including the assessment of evidence 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.

42.  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.

43.  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

44.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused. 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