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HCAL 1972/2020
[2025] HKCFI 5534
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1972 OF 2020
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BETWEEN
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Shahzad Faheem |
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 30 September 2020, 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 25 September 2020 (“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/2020/HCAL001972_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 December 2017 and confirmed the same.
Amendments
3. In Form 86, the applicant named “Torture Claim Appeal Board Non-Refoulement Claims” as the putative respondents, when only the Board should be so named.
4. He also named “Torture Claim Appeal Board Non-Refoulement Claims Petition Office Wan Chai” as the putative interested party, when the Director should be so named.
5. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended 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 applied for non-refoulement protection because if returned to Pakistan, he, a supporter of the Pakistan Tehreek-e-Insaf (“PTI”), would be harmed or killed by a Mr Shahzad Amir (“Amir”), who asked the applicant to defect from PTI to join the rival party Pakistan Muslim League - Nawaz (“PML-N”) but the applicant refused.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 September 2025.
10. At the hearing, when this court asked the applicant to give his grounds for the intended judicial review, the applicant merely said that he was a PTI supporter, all such supporters were in prison now and everybody was detained. He also said that he could not say that the Board had committed any mistake.
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. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 September 2020. He merely stated in the affirmation that he did not agree with the Board’s Decision and he did not want to go back to his country.
13. As aforesaid, the applicant did not advance any valid ground for the intended judicial review at the oral hearing before this court either.
Discussion
14. First of all, the current situation of PTI supporters in Pakistan was not raised before the Board for its assessment. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, 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.
15. Thus, the applicant’s assertion that other PTI supporters were in prison, arrested or detained cannot be a valid ground for the Leave Application.
16. 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).
17. Thus, even though the applicant has failed to advance any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
18. In assessing the appeal by the applicant, the Board held an oral hearing on 15 January 2020. The applicant was present and was given the chance to present his case to the Board in person.
19. After detailed analysis of the evidence and extensive country of origin information (“COI”), the Board did not accept that the applicant would face a genuine and substantial risk of being tortured, persecuted, ill-treated or arbitrarily deprived of life.
20. Although the Board accepted that a fight did break out between the applicant and Amir and that the ill-treatment the applicant feared he would suffer reached the necessary threshold of “minimum level of severity”, the Board found that the risk of the applicant being subjected to such ill-treatment (tortured or killed) was low as a result of its findings as follows:-
a) The applicant failed to establish that the enmity between him and Amir related to his refusal to join PML-N.
b) The fight that took place between the applicant and Amir was not a one-sided attack, and Amir had not attacked the applicant on multiple occasions. There was no evidence to explain why the applicant and Amir had a fight. The injuries the applicant suffered were not fatal and Amir was also injured from the fight. The applicant’s family continued to live in the hometown without being disturbed or harassed by Amir. The cumulative effect of what the Board accepted did not show that Amir had any motive or intention to kill the applicant or cause him grave harm.
c) Without any 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.
21. Further, the Board believed that there was adequate state protection to protect the applicant from any risk he might have over being harmed by the alleged enemies. The Board found from extensive COI that despite corruption and police inefficiency in Pakistan remained a problem, there had been improvements in police professionalism. The Board was not convinced that the applicant had tried to complain against Amir over the fight but was refused. In any event, PML-N was no longer the ruling party in Pakistan, even in his region. PTI was the ruling party in those areas. Any favours the Pakistani police might want to give to the ruling party would not be given to PML-N, but to PTI, the party the applicant supported.
22. Further, the Board considered that internal relocation would not be unreasonable or unduly harsh for the applicant, being an able-bodied male who was well-trained and had ample experience in working as a tailor. The applicant could relocate to, say, Karachi, should he find it uncomfortable to stay at home. There was little chance that the applicant’s enemies could locate him in such a large country with such a huge population.
23. Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm should he return to Pakistan.
24. The finding of facts was solely within the ambit of the Board. The Board was entitled to reach its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
25. 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.
26. 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 19th day of November 2025.
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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: 19 November 2025
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 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 9626/17/12/293/P1868
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3197/17
(formerly RBCZ 10205/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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