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HCAL 1025/2021
[2026] HKCFI 2673
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1025 OF 2021
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BETWEEN
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Javed Zubair |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
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 20 July 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 16 June 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/HCAL001025_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s application for non-refoulement protection was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 December 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant named the Board as the putative respondent in Form 86 but spelt the Board’s name wrong.
4. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by people from the Pakistan Muslim League (Narwaz) (“PML(N)”) due to his association with the Pakistan Tehreek-e-Insaf (“PTI”). The applicant claimed that his friend Mubashir was murdered by the PML(N) people, and after Mubashir’s death, the applicant received about three anonymous calls in which the callers threatened to kill him because he was campaigning and asking for votes for the PTI. He also feared that the police would arrest and torture him.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and his case was heard on 30 April 2026.
8. When this court asked the applicant for the grounds for his intended judicial review, he merely replied that he was married in Hong Kong and would like to stay with his wife here. He also said that he was currently applying for a dependent visa and he wanted more time to wait for the visa. If his application was rejected, he would file an appeal.
Grounds for judicial review
9. 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).
10. The applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 July 2021.
11. As aforesaid, the applicant did not advance any valid grounds at the oral hearing before this court either. What he said at the oral hearing were simply irrelevant to his intended judicial review.
Discussion
12. 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).
13. 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.
14. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 May 2021. The applicant was present and was given the chance to present his case to the Board in person.
15. As can be seen from the Board’s Decision, the Board had some doubt on the applicant’s claims, but for the purpose of its decision, the Board accepted the applicant’s account as described in his claims.
16. However, the Board was not satisfied that the applicant would be harmed or killed by members or supporters of the PML(“N”) because of his support for the PTI upon his return to Pakistan, and the Board had given its full and justified reasons in paragraphs 36 to 47 of the Board’s Decision for such a finding.
17. In gist, the Board found that the PTI, which the applicant supported, won the election in 2018 and became the ruling party in Pakistan. The PTI had also formed an alliance with several smaller parties and held the majority in the Punjab Assembly. The applicant acknowledged the same but failed to give a cogent explanation as to why members of the PML(N) would still want to harm him. The Board was of the view that even if the applicant were to be threatened personally by members or supporters of the PML(N) upon his return to the country, the applicant could obtain the assistance of the authorities or safely relocate to another area within Pakistan.
18. In assessing the viability of internal relocation for the applicant, the Board had fully addressed the applicant’s concerns and found that the applicant, being young and able-bodied with some formal education and a work history, would be able to find work and make a living to sustain himself upon relocation. The Board did not accept that the unnamed PML(N) supporters in Faisalabad, whom the applicant encountered during a relatively brief period in 2015, would find the applicant wherever he went in Pakistan.
19. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
20. 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 appeal/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.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 13th day of May 2026
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( Gladys LEE )
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/Handed to the applicant/the applicant’s solicitors on: 13/05/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14903/18/12/260/P2978
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4636/18 (Formerly RBCZ/13469/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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