ZAMAN SHAFQAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 3520/2019

[2025] HKCFI 5256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3520 OF 2019

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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 22 November 2019”. 

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 and filed on 27 November 2019, 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 23^rd February 2018”; and

(2)   “The Decision of the Adjudicator dated 22^nd November 2019”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 22 November 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 February 2018 (“the Director’s Decision”).

3.  It is clear that the first decision above-mentioned is the Director’s Decision, and the second decision is the Board’s Decision.

4.  However, the applicant confirmed at the oral hearing before this court on 12 August 2025 that only the Board’s Decision should be the subject 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/2019/HCAL003520_2019_files/the_Board's_Decision.pdf

5.  The Board found that the applicant was unable to make out his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

6.  In Form 86, the applicant named the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents but did not name any putative interested party.

7.  As the applicant had confirmed that only the Board’s Decision should be the subject of the Leave Application, only the Board should be named as the putative respondent and the Director should be the putative interested party.

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

9.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 22 November 2019”.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared being harmed, ill-treated or killed by his cousin, Muhammad Tauqeer, and his friends, who were members of Muttahida Qaumi Movement (“MQM”), in relation to a money dispute.  He had given his life saving to his cousin for investment but his cousin refused to repay the money after merely giving him the investment returns for two months.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 12 August 2025.

13.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the document with the title “Grounds on which Relief is sought” annexed to his supporting affirmation dated 27 November 2019.  However, when this court asked the applicant to elaborate on the grounds, he simply said no and he had nothing else to say.

Grounds for judicial review

14.  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).

15.  The contents of the document annexed to the applicant’s supporting affirmation with the title “Grounds on which Relief is sought” are reproduced as follows:-

“1. The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4.   This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions.  Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above.  As such, the decision of the director should be considered unreasonable in the scope of Public Law.  The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

16.  The said document with contents as stated above was 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 the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

17.  First of all, some of the above grounds were directed at the Director.  The applicant had confirmed that the Leave Application was only in respect of the Board’s Decision.  Further, as 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 Director’s Decision cannot be the subject matter of the Leave Application.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

18.  Paragraphs 2, 3 and 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 Leave Application.

19.  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. 

20.  In any event, the Board did assess the applicant’s risk of right to life.  The Board had considered and rejected the claim that the applicant would face a real and personal risk of being arbitrarily deprived of his life.  The Board found that if his cousin / friends had really wanted to seriously harm or kill him, there was ample opportunity to do that before the applicant left his home area in October 2015.  In fact, the applicant remained unharmed for around nineteen months after the only attack in 2014.  Coupled with the applicant’s own statement that he would not risk the safety of his family so he had already stopped chasing repayment of his investment money from his cousin, there was nothing to suggest that his cousin / friends would display any further aggression towards the applicant upon his return to Pakistan.

21.  The applicant also complained in paragraph 1 of the grounds that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

22.  However, as can be seen in paragraph 10 of the Board’s Decision, the applicant confirmed the truth and correctness of all the materials in the hearing bundle and that he wished to adopt the same as his evidence in the appeal.  No further evidence was submitted for the Board’s consideration in advance of or during the appeal upon which the applicant sought to rely.

23.  In any event, if the applicant did indeed have further evidence to produce, he could and should have asked the Board for time to do so, but he did not.

24.  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, none of the aforesaid accusations in the first paragraph of the grounds 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.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

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 an oral hearing on 29 October 2019.  The applicant was present and was given the chance to present his case to the Board in person. 

29.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.

30.  The Board did accept the applicant’s claims that he was involved in a money dispute with his cousin, who also attacked him with his friends.  The Board accepted that the applicant received a number of verbal threats.  In addition, the Board accepted that he was injured as described but fully recovered after a short period of time.

31.  However, the Board found no, or no reliable evidence to show (and hence the Board did not accept) that (1) the applicant’s cousin would harm or kill him if he were to return to Pakistan; (2) the applicant faced risk throughout the country; (3) the applicant experienced physical suffering of the requisite severity; and (4) the state of Pakistan was unwilling to help the applicant for a Convention reason.

32.  The Board further found that the applicant was not targeted on account of race, religion, nationality, membership of a particular social group or political opinion but in relation to a private money dispute only.  His cousin / friends were non-state actors in relation to the applicant’s alleged situations.

33.  The Board found from country of origin information (“COI”) that various avenues appeared to be accessible to the applicant, and it was evident that he could resolve the money dispute once and for all in the courts as a straightforward civil claim.  The applicant could have taken steps to remedy his problem but he chose not to do anything other than to flee the country.  That did not mean that state protection was not available to him.  The Board considered that there would be sufficient state protection available to him if he were refouled to Pakistan.

34.  Despite its findings that the applicant had failed to establish his claims, the Board nevertheless assessed the viability of internal relocation for the applicant as a matter of caution.

35.  The applicant did not dispute that he had not been harmed for around nineteen months in his home area after the only physical attack in 2014.  The Board considered that even if the applicant were not to return to his home area, as an able-bodied adult with years of work experience, the applicant could relocate to cities like Rawalpindi or Islamabad if he needed to.  Given that the applicant had not been troubled by his cousin / friends beyond his local area, the Board was of the view that he would unlikely be pursued, particularly with the intention to harm or kill him, if he were living elsewhere in Pakistan.

36.  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.

37.  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. 

38.  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

39.  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