AHMED KHURAM NISAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3388/2019

[2025] HKCFI 4150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3388 OF 2019

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 and oral 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” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   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 14 November 2019, 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 7 November 2019 (“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/2019/HCAL003388_2019_files/the_Board's_Decision.pdf

2.  The Board decided 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”) and confirmed the decision of the Director of Immigration (“the Director”) dated 30 May 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “Gelev Filip, Member of TCAB” as both the putative respondent and the putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  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”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared harm from some people in his village because of three separate and on-going conflicts involving different members of the applicant’s family, ie two land disputes and one business dispute.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 2 July 2025. 

8.  However, the applicant failed to advance any ground for his intended judicial review at the hearing.  He only said that his problem had not been solved and his life would still be in danger.

Withdrawal after the oral hearing

9.  After the oral hearing, the applicant filed a Notice of Discontinuance and a supporting affirmation on 9 September 2025 to withdraw the Leave Application.  The reason given for the withdrawal was that the applicant no longer required asylum in Hong Kong as he had been granted a dependent visa for Hong Kong.

10.  There is no evidence to show that the applicant made the said withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

13.  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).

14.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 14 November 2019.  He merely stated in the affirmation that he wanted to appeal against the decision made by the appeal board and immigration department as his life was still in danger and he did not want to go back.

15.  As aforesaid, the applicant also failed to advance any ground at the oral hearing before this court.

Discussion

16.  First of all, 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 (see Re Moshsin Ali [2018] HKCA 549).  This court will therefore deal with the Leave Application in respect of the Board’s Decision only.

17.  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] HKCA524).

18.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

19.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 September 2019 and the applicant was present.  Thus, the applicant did have a chance to present his case to the board in person.

20.  The Board questioned the applicant for details of his claims but found that the applicant was not a witness of truth and that he had fabricated his claims.  The Board found numerous significant inconsistencies in the applicant’s written and oral evidence, as detailed in the Board’s Decision.  Based on the gaps, inconsistencies and other problems with the evidence and having carefully considered the applicant’s claims, the Board rejected the applicant’s claims both individually and cumulatively in their entirety.

21.  The Board found that the applicant had not been embroiled in problems with any relatives.  He was therefore not of any adverse interest to Babu, Acchu, Akbar (all allegedly would harm the applicant) or anybody associated with them.  He was never involved in a land dispute or in a business dispute.  He was never injured in a gun fight or any other fight.  He did not help his uncle Lala or anybody else to murder another man.  He did not participate in any attempt to kill Acchu or anybody else.  He never had to seek medical treatment or police assistance.  He did not have to go into hiding for his safety.  He had never been charged with any offences in Pakistan and had never been a wanted person.  He had never been of any adverse interest to any person in Pakistan.

22.  In light of its findings, the Board concluded that the applicant could return home without any fear of harm.  There was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan.

23.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

24.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

26.  The assessment of evidence and risk of harm was primarily within the realm 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 decision. 

27.  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. 

28.  In Po Fun Chanv Winnie Cheung (2007) 10HKCFAR676, the Court of Final Appeal held that 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.

29.  Moreover, it is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

30.  If the applicant was indeed granted the right to stay in Hong Kong, it would be otiose and pointless to grant leave to the applicant to proceed with the intended judicial review.  Thus, this court will not grant any remedy to the applicant and the Leave Application ought to be dismissed as well.

Conclusion

31.  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