KHAN RAJA QAISAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 333/2021

[2026] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 333 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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 September 2020”.

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 11 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“Decision of the Director of Immigration. Decision Date: 18-Sept-2020”.

2.  However, the Director of Immigration (“the Director”) only made two decisions in respect of the applicant’s claim for non-refoulement protection on 9 October 2013 (“the Director’s 2013 Decision”) and 8 November 2018 (“the Director’s 2018 Decision”) respectively.

3.  The Torture Claims Appeal Board (“the Board”) made a decision in respect of the applicant’s appeal against the Director’s 2013 Decision on 17 April 2014 (“the Board’s 2014 Decision”) and a decision in respect of the applicant’s petition against the Director’s 2018 Decision on 18 September 2020 (“the Board’s 2020 Decision”).

4.  The applicant attached a copy of the Board’s 2020 Decision to his supporting affirmation dated 11 March 2021.  At the oral hearing before this court on 6 January 2026, the applicant also confirmed that the Board’s 2020 Decision is the decision in respect of which relief is sought in the Leave Application.  Thus, it is clear that the Leave Application concerns only the Board’s 2020 Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000333_2021_files/the_Board's_Decision.pdf

5.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the Director’s 2018 Decision, which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

6.  The applicant had previously made a torture claim and his claim was rejected by the Director’s 2013 Decision and the Board’s 2014 Decision.  Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to deal with Torture Risk again in the Board’s 2020 Decision.

Amendments

7.  The applicant named the Board / Non-refoulement Claims Petition Office / the Director as both the putative respondents and the putative interested parties in Form 86, and spelt the names of both the Board and the Non-refoulement Claims Petition Office wrong.

8.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

9.  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 party at all. 

10.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s 2020 Decision.

11.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s Decision dated 18 September 2020”.

Late application

12.  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 2020 Decision was made.

13.  However, the applicant filed Form 86 on 11 March 2021, which was more than 5 months after the Board’s 2020 Decision (made on 18 September 2020).  The applicant was hence late for more than 2 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.

14.  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.

15.  The applicant did not make any application for extension of time to file the Leave Application and provided no reason for the delay when the Leave Application was made.

16.  At the oral hearing before this court on 6 January 2026, when this court asked the applicant for the reason of his delay, he merely said that he was illiterate, spoke only Urdu and could not even write.  He also said that he was not aware of the time limit to make the Leave Application.

17.  The delay of more than 2 months is substantial, and the explanation given by the applicant is not satisfactory.  The applicant failed to explain how his illiteracy caused the delay.  Ignorance of the court’s procedures is also generally not an excuse.  More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application.  The Leave Application can be dismissed on the ground of being made out of time alone.

18.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

19.  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 2020 Decision, which can be viewed in the hyperlink above.

20.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by people from the Pakistan Peoples’ Party (“PPP”), as he had taken the role of chairman of the Pakistan Muslim League (Nawaz) in his area after his cousin, the former chairman, was assassinated in about 2003 or 2004.  The applicant claimed that the PPP people had laid false charges against him and would kill him.  He also claimed that his wife was killed by the PPP people the day before he lodged his appeal to the Board.

Oral hearing

21.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 6 January 2026.

22.  In his Form 86 and supporting affirmation, the applicant stated that the Board’s 2020 Decision was unreasonable and the Board failed to consider all the matters raised in his claim and/or failed to give adequate reason for the Board’s 2020 Decision.  When this court asked the applicant to elaborate on the grounds as stated, he merely replied that he was illiterate and had no idea about the grounds.  He said that somebody came to help him to prepare the grounds. 

23.  When this court asked the applicant to tell this court his own grounds, he said that he wanted to go back but his family in Pakistan told him not to do so and he would be safe by living in Hong Kong.  The family told the applicant that his brother who returned from England was killed and the police was involved.  The applicant also mentioned that his sister’s husband was an officer of the Atomic Energy Commission and he died of sickness.  The applicant’s wife also died of sickness because she was suffering from cancer.

24.  When this court asked the applicant how these deaths were related to his case, he said that after his brother’s death, he was the one who took care of the poor relatives, and some other relatives and the government wanted to kill him.  When he left Pakistan, he paid around 2.5 million Pakistani Rupees to get out of Pakistan.  He then repeated that he wanted to go back but his family did not want him to go.

25.  Clearly, the applicant did not advance any valid ground for the intended judicial review at the oral hearing.  This court also notes that the applicant had given a different reason for his wife’s death.  He told the Board that his wife was killed by the PPP people, but told this court that his wife died of cancer.

Grounds for judicial review

26.  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).

27.  As aforesaid, the applicant mentioned in Form 86 and his supporting affirmation that the Board’s 2020 Decision was unreasonable and the Board failed to consider all the matters raised in his claim and/or give adequate reason for its decision.  However, he did not elaborate on the grounds at the oral hearing.  He even admitted that the grounds were not prepared by him but someone else.  As mentioned above, what the applicant said at the oral hearing did not amount to any grounds for the intended judicial review either.

Discussion

28.  First of all, some of the matters alleged by the applicant at the oral hearing were not presented before the Board for assessment.

29.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that 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.

30.  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. 

31.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review.  There is no reason for this court to consider his non-refoulement claim afresh based on his new allegations.

32.  His accusations that the Board’s 2020 Decision was unreasonable and the Board failed to consider all the matters raised in his claim and/or give adequate reason for its decision were all without specificity. He did not explain why or how the Board’s 2020 Decision was unreasonable, what aspects of his claim were not considered by the Board, or what areas of his claim were rejected without adequate reasons.

33.  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”.

34.  Thus, none of the grounds that were contained in the applicant’s Form 86 and his supporting affirmation could establish any valid ground to challenge the Board’s 2020 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

35.  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).

36.  Thus, this court will examine and scrutinize the Board’s 2020 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.

37.  In assessing the appeal by the applicant, the Board held an oral hearing on 17 July 2020 and the applicant was present.  Thus, the applicant was given the opportunity to present his case to the Board in person.

38.  When the Board asked the applicant to provide further details of his claim, the Board found the applicant’s evidence extremely vague and in many aspects inconsistent with his previous claims.  The Board found that the applicant was clearly attempting to exaggerate his claims.  The Board did not regard the applicant as either credible or truthful.

39.  The Board was satisfied that the applicant’s claims in relation to his political involvement in Pakistan and his claims to have been targeted by the PPP people because of his activities were either exaggerated or completely untrue.  His evidence at the hearing was evasive, vague, and in important aspects inconsistent with his previous claims.  The Board was satisfied that his evidence in general about the problems he claimed to have had in Pakistan and his fears that he would be targeted for violence by the PPP people should he return had no credibility at all.

40.  Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM.

41.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

42.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

43.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

44.  The finding of facts, including 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.

45.  Having rigorously examined the Board’s 2020 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 2020 Decision. The Board’s 2020 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

46.  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

47.  For reasons aforesaid, 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