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HCAL 331/2021
[2026] HKCFI 545
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 331 OF 2021
BETWEEN
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Khan Yousaf |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board |
2nd Putative Respondent |
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and |
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Director of Immigration |
Putative 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 2nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the second decision in respect of relief is sought be amended be “Torture Claims Appeal Board’s decision dated 26 February 2021”.
2. The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 23 February 2018 be dismissed.
3. The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 26 February 2021 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 two decisions, namely:-
(1) “The Decision of the Director of Immigration dated 23rd February 2018”; and
(2) “The Decision of the Adjudicator dated 26th February 2021”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 26 February 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 February 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000331_2021_files/the_Board's_Decision.pdf
3. The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, the Board refused the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
4. In Form 86, the applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2nd putative respondent. However, the adjudicator actually made the Board’s Decision in her capacity as a member of the Board. Thus, the 2nd putative respondent should be the Board.
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 putative respondent at all.
6. The applicant did not name any putative interested party in Form 86, when the Director should be so named.
7. Thus, on this court’s own motion, the name of the 2nd putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the second decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 26 February 2021”.
The intended judicial review in respect of the Director’s Decision
8. As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.
9. Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be tortured or even killed by his paternal uncle. His uncle wanted to divide the family farm in an unfair manner with the applicant’s father but the applicant’s father disagreed. His uncle then killed his father, mother, two brothers and sister. Thereafter, the applicant left his home village to stay in Karachi. His uncle hired goons to locate and kill him after his uncle found out that the applicant was hiding in Karachi.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 6 January 2026.
13. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
14. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
15. 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).
16. The applicant annexed a document to his Form 86 with the title “Grounds on which Relief is sought”. The contents of this document were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. As the applicant is relying on the grounds stated in this document to make the Leave Application, this court will still deal with the grounds as discussed below.
Discussion
17. First of all, some of the grounds that were asserted in the said document were directed at the Director. As mentioned above, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra). Hence, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will consider only those grounds directed at the Board in respect of the Board’s Decision.
18. There are a total of 6 paragraphs in the said document. Paragraphs 2 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 5 and 6 of the grounds are relevant to the applicant’s challenge in respect of the Board’s Decision.
19. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.
20. In any event, the Board did assess the applicant’s risk of right to life. However, the Board did not accept that the applicant would face a genuine and substantial risk of being subjected to death under BOR 2 Risk[1] upon his return to Pakistan.
21. In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.
22. In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.
23. There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.
24. In the same paragraph of the grounds, the applicant further asserted that the adjudicator failed to take into account the nexus of political parties and official corruption which exists in his country, making the persecution effectively persecution by the State.
25. However, the Board had explicitly found that the applicant had failed to demonstrate any Persecution Risk[2] upon his return to Pakistan.
26. Finally, in paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
27. The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.
28. 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”.
29. Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
30. The applicant’s alleged danger in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
31. 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).
32. 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.
33. In assessing the appeal by the applicant, the Board held an oral hearing on 24 April 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
34. As can be seen from the Board’s Decision, the Board found many aspects of the applicant’s account lacking in detail, inconsistent with his account in other settings, and/or simply defying logic. By reason of the Board’s assessment of the credibility of the applicant’s account, the Board could not find the centerpiece of his story to stand.
35. The Board was not satisfied that the applicant had established his account as to why he came to Hong Kong. The Board found that he had failed to establish the enmity between himself and his uncle. Hence, he had failed to establish the motive for his uncle to want to kill him. The Board further found that the applicant had failed to establish the shooting incident and the death of his family. Without any past experience of ill-treatment, or any credible evidence to show the enmity, the Board was not persuaded that there was any real risk of harm on the applicant if he were to return to Pakistan.
36. Moreover, the Board found from extensive COI that despite shortfalls, there had been improvements in police professionalism and there was adequate state protection to protect the applicant from any risk he might have over being harmed by his alleged enemies. The Board also found internal relocation to be viable and not unduly harsh for the applicant who had years of experience in farming.
37. Thus, the Board concluded that the applicant had failed to demonstrate that he was in danger of any harm warranting non-refoulement protection.
38. The finding of facts 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.
39. 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.
40. 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
41. For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.
Dated the 4thday of February 2026
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( Irene LEE ) |
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for Registrar, High Court |
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:
4 February 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:
4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
2nd putative respondent’s ref. no.:
USM 10634/18/3/86/P2048
Director of Immigration
1st putative respondent and the putative interested party’s ref. no.:
QA T/C 460/18
(Formerly RBCZ/3001793/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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