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HCAL 323/2021
[2026] HKCFI 534
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 323 OF 2021
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BETWEEN
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Hussain Nasir |
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”, 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 3 March 2021”.
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 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-
“Notice of Decision issued by the Immigration Department dated 3 March 2021 (22 Pages in total)”
2. The Torture Claims Appeal Board (“the Board”) made a decision on 3 March 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 September 2020 (“the Director’s Decision”).
3. At the oral hearing before this court on 8 January 2026, the applicant confirmed that the Leave Application was in respect of the Board’s Decision only. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000323_2021_files/the_Board's_Decision.pdf
4. 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”). Thus, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision.
Amendments
5. In Form 86, the applicant named the Board / “Non-Refoulement Claims Petition Office” and the Director as the putative respondents, when only the Board should be the putative respondent.
6. He also named the Board / “Non-Refoulement Claims Petition Office” and “Immigration Department” as the putative interested parties, when the Director should be so named.
7. 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.
8. This court therefore 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”.
9. As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 3 March 2021”. Thus, on this court’s own motion, it is so amended.
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 if refouled to Pakistan, he feared ill-treatment by his brother-in-law, ARSHAD, as he advised his sister, NABILA, to file a claim for custody of her children and maintenance for them from ARSHAD. The applicant also feared that he would be sent to Afghanistan for war and would be pursued by the authorities because of his past failure to report for army reserve duty when called upon to do so.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 January 2026.
13. When this court asked the applicant to elaborate on the grounds for his intended judicial review as laid out in his 10-page supporting affirmation dated 10 March 2021, he merely said that he would rely on what were written there. He then repeated his dangers, namely that he feared he would be sent to the country’s border for war and that he faced threat from his relative due to a dispute related to his sister. Nevertheless, he confirmed that those matters had been presented to the Board.
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. The applicant’s 10-page supporting affirmation dated 10 March 2021 contained some general grounds for the intended judicial review, which are summarised as follows:-
(1) There was procedural unfairness as he was not provided with legal assistance and language assistance;
(2) the Board’s approach to country of origin information (“COI”) was selective and it failed to address the negative aspects, especially the corrupt police in India which supported his claim; and
(3) the decision maker failed to carry out sufficient research and inquiry into COI conditions, and failed to consider or put sufficient weight on highly relevant COI. Instead, the officer picked and put full weight on COI of little or no relevance.
16. The contents as stated in the applicant’s affirmation were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. The applicant had simply combined these standard grounds and used them without any regard to his own situation.
17. This court notes that the second ground summarised above was in fact irrelevant as the home country of the applicant is Pakistan, not India. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
18. As aforesaid, the applicant failed to elaborate any of the grounds stated in his affirmation at the oral hearing on 8 January 2026. What he said at the hearing did not amount to any valid ground for judicial review at all.
Discussion
19. 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”.
20. Thus, the general assertions put forward by the applicant, which merely contained “key words” such as there was procedural unfairness as he was not provided with legal and language assistance cannot help the applicant at all.
21. Regarding his complaint of the lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when the Director assessed his non-refoulement claim.
22. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
23. Likewise, it is trite that the high standards of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.
24. As aforesaid, the second ground put forward by the applicant, namely that the Board’s approach to COI was selective and it failed to address the negative aspects, especially the corrupt police in India which supported his claim, was totally irrelevant to the applicant’s situation.
25. Finally, the applicant asserted that the decision maker failed to carry out sufficient research and inquiry into COI conditions, and failed to consider or put sufficient weight on highly relevant COI. Instead, the officer picked and put full weight on COI of little or no relevance.
26. However, he failed to identify what country condition the Board failed to carry out sufficient research and enquiry, what highly relevant COI the Board failed to consider, or which piece of COI that the Board had put full weight on was of little or no relevance.
27. In fact, contrary to the applicant’s assertion, this court notes that the Board had considered highly relevant COI especially on military service age and obligation in Pakistan. The applicant claimed to be in fear of being sent to Afghanistan for war. However, as can be seen in paragraph 50 of the Board’s Decision, the Board found from fully-referenced COI that the applicant would only remain subject to call-up for army reserve duty until he reached the age of 45, which was before his case was heard by the Board.
28. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
29. 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).
30. 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.
31. In assessing the appeal by the applicant, the Board arranged an oral hearing on 19 January 2021 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
32. As can be seen from the Board’s Decision, the Board had thoroughly analyzed the applicant’s claims regarding his claimed fear both from the authorities regarding his army service and his brother-in-law.
33. With respect to the applicant’s fear about his military service, the Board first found on the applicant’s admission that the call-up letters he received actually made no mention of Afghanistan. Even if the applicant’s evidence was taken to its highest, there was no evidence that he suffered any harm at any time as a result of his failure to comply with the call-up orders. The only adverse consequences he suffered after his return to Pakistan in 2014 was that payments to him by the army were terminated, and he received a single phone call telling him to report for training duty. There was no evidence that the army, the police or other authorities took any meaningful action against him, or sought to harm him, in respect of his failure to comply with orders for reserve service. The Board found not a shred of credible evidence to support his contention that the military wanted to kill him.
34. As mentioned, the Board found from COI that the applicant was no longer liable to reserve duty after he reached the age of 45 in April 2019. The applicant’s own evidence was that he deliberately ignored the various call-up letters he received over the years. In the circumstances, there was nothing to suggest that if the authorities sought to arrest and prosecute him in relation to his failure to comply with those requirements for service as a reservist, their actions would be improper or amount to persecution.
35. The Board also found that even if the applicant’s claim as to the higher number of threatening calls from his brother-in-law was accepted, it found no evidence that ARSHAD ever took any steps to carry out those threats, or that he attempted to harm the applicant in any way. In fact, even on the applicant’s own evidence, it was the applicant who had beaten ARSHAD and fired gunshots in the air when ARSHAD came near him.
36. The Board further considered and enquired with the applicant two new claims which were asserted in the applicant’s Notice of Appeal/Petition. However, contrary to the written assertions, the applicant told the Board that he could not remember being beaten and he had never been pursued by religious terrorist sects. The Board thus found no basis for these assertions and did not accept them.
37. Moreover, although the Board accepted that there was COI which indicated shortcomings in the police and widespread corruption within the police and the government, COI also showed that reforms had been, and were being, made to improve the situation. The Board thus found that reasonable state protection would be available to the applicant if he returned to Pakistan.
38. After due consideration of the law and all the evidence, the Board concluded that the applicant did not face a real risk of any of the proscribed forms of harm if refouled to his own country.
39. As to internal relocation, the Board specifically mentioned in paragraphs 76 to 81 that even if the applicant had been able to show that he faced a real or genuine risk of harm as claimed, the Board would have found that the risk was confined to the local area where he had lived and that internal relocation to another part of Pakistan would mitigate or remove such risk. As the applicant was a mature adult with years of work experience in a variety of roles, the Board would have found that there was no circumstance that would make it unreasonable or unduly harsh for him to relocate elsewhere in Pakistan.
40. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
41. 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.
42. 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
43. For reasons aforesaid, the Leave Application is dismissed.
Dated the 28th day of January 2026
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( Irene 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 his 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: 28 January 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:
28 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17277/20/10/26/P3384
Director of Immigration
Putative interested party’s ref. no.:
ImmD/CR T/C 530/20
(Formerly RBCZ 10441/20) (T2S1)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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