HUSSAIN RASHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 1522/2021

[2026] HKCFI 3413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1522 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” 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 3 November 2021, 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 28 October 2021 (“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/2021/HCAL001522_2021_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 affirmed the decision of the Director of Immigration (“the Director”) dated 11 June 2020, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and “Non-Refoulement Claims” as the putative respondents, and the Board and “Non-Refoulement Claims Petition Office” as the putative interested parties in Form 86.

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

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 harmed or killed by Pakistan Tehreek-e-Insaf (“PTI”) workers due to his political work for Pakistan Muslim League (Nawaz) (“PMLN”).

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 June 2026.

10.  When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he was a supporter of PMLN and someone forced him to join PTI.

Grounds for judicial review

11.  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).

12.  The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 3 November 2021.

13.  What the applicant said at the oral hearing before this court could not amount to any ground either, as he merely repeated the basis of his non-refoulement claim.

Discussion

14.  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).

15.  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.

16.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 7 October 2021. The applicant was present and was given the chance to present his case to the Board in person.

17.  As can be seen from the Board’s Decision, the Board questioned the applicant extensively about the political situation of Pakistan at the material time. The Board had laid out its assessment of the applicant’s claims and credibility in paragraphs 33 to 40 of the Board’s Decision, and it is not necessary to repeat the same here.

18.  In gist, given the applicant’s lack of knowledge about major political events in Pakistan which were not only directly relevant but central to his claims, the Board did not regard it as credible that the applicant was an active member of PMLN at all. The Board did not find it plausible that an active member of a political party could be unaware that the party was in fact governing not only the province in which he lived but the country as a whole. The applicant’s alleged “mistake” in these areas undermined the entire basis of the claims. The Board was not satisfied that the applicant’s claims about his political involvement with PMLN, or the claimed threats against him by PTI, had any credibility.

19.  Accordingly, the Board found the applicant failed to establish that there were substantial grounds which supported the conclusion that he would face a real risk of ill-treatment, torture, arbitrary deprivation of life or persecution at the hands of PTI should he return to Pakistan.

20.  The Board did not consider availability of state protection to the applicant. However, as the Board found that the applicant did not face a real risk of the proscribed harm if the applicant was refouled to Pakistan, it is not necessary for the Board to consider the availability of state protection.

21.  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).

22.  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.

23.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

24.  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.

25.  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

26.  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