QAISAR NAEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1091/2020

[2025] HKCFI 3240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1091 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the 1^st Putative Respondent; and

b.  the Director of Immigration be named as the 2^nd Putative Respondent.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 4 June 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 25 May 2020 (the “Board’s Decision”); (ii) the decision of the Director of Immigration (the “Director”) dated 14 January 2019 (the “DOI Decision”).

2.  Given that the Applicant purports to challenge both the DOI Decision and the Board’s Decision, 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 16 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In essence, the basis of the Applicant’s claim is that:-

(1)  He is in fear of being seriously harmed or killed by members of the Pakistan Muslim League-Nawaz (“PML(N)”) because the Applicant, as a member of the Pakistan People’s Party (“PPP”), refused to join the PML(N). According to the Applicant, his uncle was the local chairman of PPP and was killed by individuals affiliated with the PML(N) in 1994 and his elder brother Nadeem Qaisar (the “Brother”) who joined the PPP was also murdered in 2003.

(2)  The Applicant himself was subject to physical attacks by his political enemies in 2006 (the “2006 Beating Incident”). He also claimed that the PML(N) affiliates were able to bribe the police to bring false charges of burglary and theft against the Applicant before he left Pakistan in 2008.

Discussion

5.  Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Hence, I shall give my brief reasons below.

6.  At the outset, I should point out that the challenge against the DOI Decision is misconceived. The appeal to the Board is conducted by way of rehearing and the Board’s Decision would effectively overtake the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the focus should be on the Board’s Decision.

7.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the court will adopt 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 should not usurp the role of the Board. Findings of fact on the assessment of evidence such as country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.  It is also trite law that, an applicant, even if unrepresented, is required to properly identify the 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, 22 December 2016) per Chow J. (as he was then) at §142.

9.  The Applicant has evidently failed to discharge this obligation:-

(1)  In the Form 86, the Applicant alleged that the Board failed to make sufficient inquiries and failed to advise the Applicant as to what credible evidence he should adduce. It is also alleged that the Board had failed to give the Applicant sufficient chance to arrange for relevant evidence to be submitted.

(2)  In the supporting affirmation, he also alleged that the Board (i) acted unreasonably in rejecting his claim; and (ii) failed to take into account “many things and issues”.

(3)  Despite the various complaints made against the Board, the Applicant has failed to condescend to particulars as to how the Board is said to have erred, e.g. how it had acted irrationally or what relevant matters it failed to take into account or what further evidence the Applicant could have adduced.

10.  Notwithstanding the above, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

11.  Having stated the correct legal principles (at §§13-29), the Board has rightly reminded itself that the burden of proof lies on the Applicant even though the inquiry was one of “joint endeavour” (at §§14, 24, 88). There is no proper legal basis for the Applicant to allege that the Board was under a general duty of an undefined scope to “advise” the Applicant.

12.  Further, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm after a meticulous analysis of the relevant evidence (at §§74-93). In reaching its conclusion, the Board found that the Applicant was not a witness of truth and rejected his factual account:-

(1)  There were significant inconsistencies in the Applicant’s factual account of the 2006 Beating Incident (at §§77-78) and the alleged false charges against him (at §80-81).

(2)  The Board also rejected the Applicant’s general claim that he came from a family with a long term tradition of support for the PPP, as the Applicant had little knowledge of the circumstances of assassination of former PPP leader and prime minister Benazir Bhutto which should be well known to individuals who are in the Applicant’s position (at §83).

13.  The Applicant’s contention that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence.

14.  I also note that, as recorded in the Board’s decision (at §34), on the Applicant’s own admission, he returned to Pakistan in 2014 without any difficulty with Pakistan immigration authorities and had stayed in various places in Pakistan until November 2015 without encountering any threat of harm. In such circumstances, the Board was entitled to find the Applicant could in any event be relocated to other parts of Pakistan (§91 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test.

15.  At the Hearing, the Applicant also said he was due to undergo operations at a hospital in Hong Kong for kidney stone removal. He also complained that he was suffering from a number of medical conditions including hypertension and has been on medication. Regrettably, I do not see how these matters assist the Applicant’s case:-

(1)  Evidence of the Applicant’s alleged medical condition was not properly adduced by way of affirmation evidence.

(2)  Even if I were to accept the Applicant’s evidence as to his medical condition, I cannot see how this can amount to a valid ground for non-refoulement. It has not been suggested by the Applicant that his condition is imminent or life-threatening. There is also no evidence that the Applicant will not receive adequate medical treatment if he returns to Pakistan.

(3)  In any event, there is no evidence that (i) these conditions are life-threatening or requires imminent medical treatment; and (ii) the Applicant would not receive medical care if he returns to Pakistan.

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, I refuse to grant leave for judicial review.

Conclusion

17.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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