AHMED WAQAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 352/2021

[2026] HKCFI 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 352 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant in open court;

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 be “Torture Claims Appeal Board’s decision dated 1 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 16 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The Petition teams (security Bureau) gave unfare dicision on my U.S.M appeal at 01-MARCH-2021 but I am not saticefied in it”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 1 March 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 April 2020 (“the Director’s Decision”).  It is clear that the decision referred to in Form 86 is 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/HCAL000352_2021_files/the_Board's_Decision.pdf

3.  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”).  Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant did not name the putative respondent and the putative interested party correctly.

5.  In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party.

6.  As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 1 March 2021”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by his ex-wife’s family.

Oral hearing

10.  The applicant requested for an oral hearing and his case was heard on 15 January 2026.

11.  When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he had threats in his country and he had presented all to the Board.

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.  In Form 86, the applicant mentioned that he still had problems with his ex-wife’s family.  In his supporting affirmation dated 16 March 2021, he merely asserted the same and added that they filed cases against him, he got the summons many times and they tried to kill him.

Discussion

14.  The applicant’s claims regarding the danger he faced by his ex-wife’s family 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.

15.  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).

16.  Thus, even though the applicant has failed to establish 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.

17.  In assessing the applicant’s appeal, the Board held an oral hearing on 10 November 2020.  Thus, the applicant was given the chance to present his case to the Board in person.

18.  After due consideration of the evidence, the Board accepted that the applicant did marry a woman from a different caste in 2017 and her family did not approve of this.  As a consequence, the applicant was harassed, threatened and assaulted on a number of occasions.  The Board also accepted that the applicant and his ex-wife were divorced in 2019, and that the applicant had a subjective fear of being harmed by his ex-wife’s family.  The Board further accepted that the applicant was being served with a summons which was issued by the court for a call over to make inquiries under “Order 5 rule 3 of the Civil Law”.

19.  However, the Board had gone through very extensive country of origin information (“COI”) about the said Order 5 rule 3 of the Civil Law and for its assessment of the availability of state protection and viability of internal relocation for the applicant.

20.  The summons as presented provided that the applicant could appear personally or be represented by a lawyer.  Therefore, according to the document, while accepting that the applicant’s ex-wife’s family might have attempted to institute proceedings for some reason, and it might be that they were continuing attempts to harass the applicant through issuing such proceedings, the Board could not place any weight on it as being used to harm him.

21.  The Board found that the ill-treatment inflicted upon him did not involve the state and was not serious to reach the minimum level of severity.  The Board noted from COI that the state was willing and able to provide effective protection to persons who fear persecution or serious harm from non-state and rogue actors.  Further, there were a range of legal options available to the applicant which he had not explored.  He had not used the existing legal processes and procedures available to him in his circumstances, such as pursing the lodgement of a First Information Report, applying to the court for restraining orders, or alternative dispute resolution processes led by the court.

22.  The Board also found that the evidence provided by the applicant disclosed no substantial grounds for believing that ex-wife’s family could locate him in such a large country with such a huge population if he relocated to other parts of Pakistan.  The Board found that it would not be unduly harsh for the applicant, being a tailor by profession with work experience also as a labourer in construction overseas, to relocate to a city such as Karachi and settle there to avoid the harm he feared.

23.  The Board thus concluded that the applicant failed to establish his claims for non-refoulement protection on all the applicable grounds under the USM.

24.  The assessment of evidence, COI and risk of harm was primarily within the ambit 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 decision. 

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.

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

Form CALL-1