ASGHAR ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 361/2020

[2025] HKCFI 4205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 361 OF 2020

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 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 10 March 2020, 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 24 January 2020 (“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/2020/HCAL000361_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 14 September 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named “Non refoulement claim petition office Torture claims appeal board The director of Immigration” as the proposed respondents in Form 86, when only the Board should be named as the putative respondent.

4.  He also named “Torture Claim Appeal Board/ Non Refoulment claims petition office” as the putative interested party, when the Director should be so named.

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 party 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”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being harmed or killed by (i) Ilyas and Ali Zaman (the “Political Enemies”) from Pakistan Muslim League (Nawaz) who loathed his support to their rival party, Pakistan Tehreek-e-Insaf (“PTI”); and (ii) Kiramat Ali (“Ali”) due to the applicant’s love affair with Ali’s daughter, Nadia.

9.  However, the applicant confirmed with the Board at the Board’s hearing that he was no longer at risk from the Political Enemies as Ilyas had passed away and that the Political Enemies did not cause any further troubles to him.

10.  Thus, the applicant’s fear of returning to Pakistan was only the perceived harms from Ali.

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 17 July 2025.

12.  When this court asked the applicant for the grounds for his intended judicial review, he said that his brother was murdered in Pakistan about 3 years ago.  He believed his brother was murdered because his brother supported him.  The applicant also said that “they” had his wife’s number in Hong Kong and threatened her about 2-3 years ago, and because of the stress, his wife left him.  The applicant confirmed that both incidents happened after the Board’s Decision.

13.  The applicant also added that the mission of the person whom he had problem with was to kill him and then he could rest.

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.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86.  He merely stated in Form 86 that he was not satisfied with the Board’s Decision because it was a very serious case in his country but the Board refused his claim without any valid reason and they did not examine his body.

16.  In his supporting affirmation dated 10 March 2020, the applicant again stated that the Board rejected his claim without any valid reason.  The remaining relevant content of the affirmation is reproduced as follows:-

“The first erred that the board make it para 26 i accepetd that i lived almost 2 year in village after assult before coming to hong kong. because my father and some village senior talking to them to solve this problem and some senior villagers trying to agree them to let them get marriage then people will not taunt them because of asghar ali. but they did’nt agree and they feel ashamed that our sister Bf is still alive and village people will taunt us.they will not leave me alive until death,because some people village will tauntb them because of me. how board make decision they did’nt torture me by physically and mentally even they did’nt examine my body. its avery serious case in our country even no politcal party or any other party involved.”

17.  As aforesaid, the applicant did not advance any valid ground at the oral hearing before this court.  The applicant only informed this court that his brother was murdered and his wife was threatened and left him, and both incidents occurred after the Board’s Decision.

18.  The allegation that the mission of the person whom he had problem with was to kill him and then he could rest was just the applicant’s saying that he was still at risk of being killed.

Discussion

19.  First of all, if the applicant intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

20.  Further, as held in Nupur Mst v Director of Immigration[2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

21.  Thus, the applicant cannot rely on the matters that happened after the Board’s Decision to challenge the same.

22.  The allegation that the mission of the person whom he had problem with was to kill him before that person could rest is not a ground to challenge the Board’s Decision at all.  In any event, the applicant’s alleged risk had been fully assessed but rejected by the Board as discussed below.

23.  In the content of his affirmation, the applicant seemed to suggest that the Board had made a wrong finding in paragraph 26 of the Board’s Decision.

24.  Paragraph 26 of the Board’s Decision reads as follows:

“It was noted that the Appellant had not submitted any evidence to support his claim or in relation to the Assaults. The Appellant had not reported the Assaults to the police or other authorities in Pakistan. Even though the Appellant alleged that his injuries were severe and his chance of survival was low after the attack and that his family had prepared for funeral, he continued to meet Nadia regularly until late December 2015. The Appellant had been physically fit in participating in PTI voting activities in 2015 that led to his attack by the Political Enemies. He managed to flee to Swat and stayed there until he had obtained his Pakistani passport and planned his risky trip to China and sneaked into Hong Kong, as such, it is not suggested that the injuries he had suffered or any ill-treatment, either physically or mentally at the First Assault had attained a minimum level of severity. According to the Appellant, nothing eventful had happened to him since late 2013 after the First Assault until late 2015 for at least two years and also during his stays in Swat. Ali did not kill the Appellant during the First Assault though he had opportunities to do so and the Appellant had managed to run away after the Second Assault. Ali at most wished to give the Appellant some pressures for him to leave Nadia. The harm by Ali is not as real and imminent as the Appellant had asserted.”

25.  The content of paragraph 26 of the Board’s Decision as stated above is part of the Board’s finding of facts.  It seems that the applicant was trying to use what were stated in his supporting affirmation to challenge the Board’s finding of fact.  However, the finding of facts was within the sole ambit of the Board, and as discussed below, it is not for this court to re-assess the facts in a judicial review.

26.  The applicant complained that the Board reached its decision without examining his body.  However, medical examination of non-refoulement claimants is not a must.  If the applicant believed that the medical/physical condition of his body would support his claim, he could have asked for a medical examination or submit a medical report on his own volition for the Board’s consideration, but he did not do so.  The applicant cannot simply make a subsequent complaint like that after the Board’s Decision.

27.  Thus, none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

28.  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, supra).

29.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

30.  In assessing the appeal by the applicant, the Board held an oral hearing on 8 October 2019.  The applicant was present and was given the chance to present his case to the Board in person. 

31.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.  Its conclusion was based on its finding of material facts, which are listed as follows:

(a)   Ali and his cousins were non-state actors;

(b)   The assaults from Ali originated from a private dispute between Ali and the applicant.  In all the circumstances, there was no evidence to show that the applicant had suffered physical and/or mental ill-treatment from Ali of the requisite severity.  Those threats fell short of the required level of genuine and substantial risk;

(c)   The applicant had not reported the assaults to the police and other government authorities in Pakistan;

(d)   There was no evidence that any public official, or persons able to wield the authority of the government and/or state had any connection with the applicant’s claim;

(e)   There was no evidence that the government and/or state and/or other authorities in Pakistan even knew about the applicant’s plight; let alone acquiesced in the ill-treatment of the applicant, if any;

(f)    There was no evidence showing that Ali had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance;

(g)   There was no, or no reliable evidence that the alleged ill-treatment of the applicant, if any, had any relevance to the interest and/or benefit of the government of Pakistan;

(h)   There was no, or no reliable evidence that the applicant had a well-founded fear of persecution for one or more of the reasons enumerated in Articles 1A(2) of the RC[1];

(i)     There was no evidence to show that the state of Pakistan was unwilling or unable to afford protection to the applicant;

(j)     There was no evidence to show that the government of Pakistan was unwilling to help the applicant for a Convention reason, or for any other reason.  There was no evidence that the applicant had sought state protection.

32.  It is clear that the Board found that state protection was available to the applicant.  Moreover, the Board also found that it would not be unduly harsh for the applicant, being able-bodied and young, to re-establish himself elsewhere in Pakistan.  The Board considered it highly unlikely for Ali or his cousins to locate the applicant in such a vast country in case they would.

33.  Thus, the applicant’s feared threat from Ali had been duly assessed but rejected by the Board.

34.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to make its decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.  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. 

36.  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

37.  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