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HCAL 1592/2024
[2026] HKCFI 4736
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1592 OF 2024
BETWEEN
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Ali Abu Bakar |
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”, 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 16 September 2024, 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 26 August 2024 (“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/2024/HCAL001592_2024_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 January 2024, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named “TOURTURE CLAiM APPEAL BOARD NON REFOULEMENT CLAiM PETiTiON OFFiCE” as the putative respondent, and “TORTURE CLAiM APPEAL BOARD NON REFOULEMENT CLAiMS PETiTiON OFFiCE” as the putative interested party, when only the Board should be the putative respondent, and the Director should be the putative interested party.
4. 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.
5. 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
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, his life would be in danger from his paternal uncle named Naeem Iqbal (“Naeem”) due to the applicant’s refusal to transfer his part of the family’s land to Naeem.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 13 August 2026.
9. When this court asked the applicant for the grounds of his intended judicial review, he merely said that he could not go back to his country as there were a lot of problems going on, two of his family members had been injured during the unrest, he could get documents from Pakistan to support his application and the situation became more serious in the last few months.
10. Moreover, the applicant said that he did not know about the oral hearing in advance, and it was unfair to him because he was not prepared for the hearing and he could not obtain some documents from Pakistan to support his application due to his detention.
11. This court then explained to him the role of this court in a judicial review, and it was not for this court to receive new evidence in support of his non-refoulement claim.
Grounds for judicial review
12. 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).
13. The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 16 September 2024. In the said affirmation, the applicant only stated that he was not satisfied with the Board’s Decision since his life was still in danger in Pakistan. He requested this court to recheck his case and he did not want to go back to his home country.
14. As said, at the oral hearing, the applicant only mentioned that there were a lot of problems going on, two of his family members were injured and the situation was getting more serious. He further mentioned that it was unfair to him as he did not know about the oral hearing in advance and he was not prepared.
Discussion
15. First of all, the applicant’s problems with his relatives due to property dispute in his country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
16. His new claims at the oral hearing, namely that two of his family members were injured and his problem was getting more serious were not presented before the Board for assessment. 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. Thus, these new matters cannot amount to any valid grounds for the intended judicial review.
17. As to his complaint that he did not know about this court’s hearing in advance, a notice of hearing was sent to the applicant at Castle Peak Bay Immigration Centre, where he was detained, on 17 July 2026. Thus, there was a period of more than 3 weeks from the time of the notice to the actual hearing on 13 August 2026 for the applicant to prepare his case. Moreover, he filed the Leave Application on 16 September 2024, and if he indeed had any preparation to make, he should have ample time to do so.
18. Thus, none of the matters that were raised in the applicant’s affirmation or at the hearing before this court constitutes a valid ground in challenging the Board’s Decision.
19. 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).
20. Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. Nevertheless, 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.
21. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 April 2024. Thus, the applicant was given the opportunity to present his case to the Board in person.
22. As can be seen from the Board’s Decision, the Board had questioned the applicant extensively at the Board’s hearing to try to understand his case better. The Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
23. The Board had laid out its assessment of the applicant’s claim, its conclusion of the applicant’s evidence and its assessment of the applicant’s future risks in paragraphs 91 to 107 of the Board’s Decision, and it is not necessary to repeat the same here.
24. In gist, the Board found multiple aspects of the applicant’s claims which raised the Board’s concerns about the credibility of his claims. Notably, there were inconsistencies in his evidence and a number of aspects of the applicant’s claims made little or no sense, including why the uncle would be pressuring the applicant to transfer property the applicant did not own, and why the uncle and the applicant’s father would want to kill him on the one hand and have him come to live with them on the other. These concerns case doubts on the accuracy of the applicant’s claims, leading the Board to conclude that the applicant had fabricated or at least exaggerated the threats and risks he claimed to have faced.
25. Consequently, the Board was not satisfied that the applicant did in fact face any appreciable risk of harm for the reasons claimed.
26. Despite its findings as summarised above, the Board explicitly stated in paragraphs 105 to 107 of the Board’s Decision that even if the Board were inclined to accept the applicant account as set out in his Non-refoulement Claim Form, the Board would find that any threat to the applicant could be avoided by him relocating to another part of Pakistan such as Karachi and Rawalpindi, where he had previously and on his own evidence been safely able to relocate.
27. The Board found that the applicant faced no appreciable risk because any threat arising from the claimed property dispute would be localised in the sense that there would be no logical basis for any conflict to arise over the disputed property in the applicant’s absence. Furthermore, the Board would also find that internal relocation would not be unduly harsh given the applicant’s profile, work history, and his maternal relatives’ support.
28. Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.
29. 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.
30. 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 error 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.
31. 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
32. For reasons aforesaid, the Leave Application is dismissed.
Dated the 19th day of August 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 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: 19/08/2026
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: 19/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 22963
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1543/23 (Formerly RBCZ 5001525/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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