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HCAL 869/2023
[2026] HKCFI 4438
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 869 of 2023
BETWEEN
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Raza Ali |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Stay under section 15 and Regulation 7A of the Legal Aid Ordinance (Cap 91) be lifted.
2. The Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 5 June 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 18 May 2023 (the “Board’s Decision”).
2. To ensure that the Board is properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.
3. An oral hearing was requested by the Applicant. It took place before me on 20 July 2026 (the “Hearing”). At the Hearing, the Applicant told me that had applied for legal aid on 9 July 2026. The Director of Legal Aid also filed a Memorandum on 10 July 2026 confirming the same. Nevertheless, I refused to adjourn the Hearing and told the Applicant that I would consider lifting the statutory stay.
4. The Applicant submitted to me that he was not aware of the need to apply for legal aid. I am not satisfied that this is a reasonable explanation given that over 3 years have lapsed since the Applicant filed his Form 86. It is plainly in the interests of the justice that the matter be dealt with expeditiously and the court may, if appropriate, lift the stay where a legal aid application was made shortly before the hearing, see: Kaba Abdoul Karim v Torture Claims Appeal Board / Non refoulement Claims Petition Office [2026] HKCFI 3729 at §3. Accordingly, I make an order to lift the statutory stay and proceed to consider the merits of the Leave Application.
Background
5. The relevant background of the Applicant’s claim had already been set out in detail in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In essence, the Applicant’s case is that he will be harmed or killed by an individual known as “Tanveer” and his associates from the Pakistan Muslim League (N) (“PMLN”) because the Applicant accidentally killed Tanveer’s brother in an accident in early June 2019 (the “Accident”), after which the Applicant left Pakistan on 6 August 2019 and arrived in Hong Kong on 7 December 2020.
Discussion
6. The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out the brief reasons for my decision on the Leave Application hereinbelow.
7. It is well established that judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
8. Further, an applicant, even if acting in person, is required to properly identify the proposed grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.
9. In the Form 86, the Applicant advanced the following grounds of review:-
(1) The Applicant was not given a fair opportunity to make further submissions to the Board (“Ground 1”).
(2) The Board had relied upon sources which were outdated or incredible (“Ground 2”).
10. At the Hearing, the Applicant told me that he had nothing else to add to his application.
11. I do not consider Ground 1 to be meritorious. As expressly recorded in the Board’s Decision (§3), the Applicant was asked whether he had anything to add to the hearing bundle. Questions were posed to him by the Board as to his evidence and he was given the opportunity to clarify his case and to make a final submission. There is also no indication from the Board’s decision that he had made any request for making further submissions. The Applicant has failed to identify what these submissions were and how they would assist his case.
12. Ground 2 is also devoid of merits. The Applicant has made no attempt to identify which sources relied upon by the Board is said to be incredible or outdated and explain how they affect his case. In any event, as noted by the Board (§34), although the Board considered the COI put before it, the Applicant’s claim failed on the facts and it was not strictly necessary to consider the COI in detail.
13. In any event, I have considered the Board’s Decision, I do not find any error of law, procedural impropriety or irrationality which justifies granting leave to judicial review.
14. I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was plainly correct in finding that there is no evidence demonstrating any real risk of serious harm, given the Board’ conclusion that the Applicant’s evidence was unsatisfactory:-
(1) Material aspects of the Applicant’s account of the Accident (which is a crucial part of the Applicant’s case) were inconsistent (§36).
(2) The Applicant’s evidence about the alleged connection between Tanveer and PMLN is based on hearsay from his father and the Applicant was unable to explain how his father got to know about the connection (§37). There was no evidence that Tanveer held any official position in PMLN or that he was actually able to exercise any real influence over the PMLN (§7h). There is no basis to disturb the Board’s rejection of the Applicant’s case that Tanveer is so powerful that he would be able to locate Applicant anywhere within Pakistan, which is in any event contradicted by the Applicant’s own evidence that he was able to flee to Islamabad without encountering any problem (§§7c, 37-38).
(3) Despite the Applicant’s claim that he was being pursued by the Pakistan police, it is undisputed that the Applicant left Pakistan via the official channels without any difficulty (§39).
(4) It also took the Applicant about 2 months since his arrival in Hong Kong to seek non-refoulement protection and the Applicant was unable to give any logical explanation for the delay. The lack of urgency in approaching the Hong Kong authorities is inconsistent with the notion that the Applicant was in a genuine fear of his life being in danger should he return to his home country (§§43-44).
(5) The Applicant also took inconsistent positions as to whether he had made any attempt to contact his parents who are still in Pakistan (§§45-46). There is no evidence that Tanveer has even visited his parents after he fled Pakistan (§§47, 50).
15. In any event, even on the Applicant’s evidence, the threat to kill the Applicant was only a verbal threat and there was no incident indicating the carrying out of such threat and Tanveer had never brought any weapons when trying to find the Applicant (§50). Hence, there is plainly no risk of harm for the Applicant if he were to return to Pakistan. There is also no evidence of any official or passive acquiescence on the part of the Pakistan government given that the Applicant was able to obtain his passport and leave Pakistan on 6 August 2019 (about 2 months after the accident) (§51).
16. In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, leave for judicial review is refused.
Conclusion
17. I make an order (i) the stay under the Legal Aid Ordinance (Cap 91) be lifted; (ii) the Form 86 be amended as described above; and (iii) the Leave Application be dismissed.
Dated the 14th day of August 2026
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(Klein Tse)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 14/8/2026
Raza Ali
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/8/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20051
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1862/21 (formerly RBCZ 10896/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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