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HCAL 1518/2021
[2026] HKCFI 3409
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1518 OF 2021
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BETWEEN
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Waqas Ali |
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 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 2 November 2021, 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 28 October 2021 (“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/HCAL001518_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 26 March 2019, which rejected the applicant’s non-refoulement claim on the said grounds.
3. The applicant had previously made a torture claim and his torture claim was rejected by the Director on 21 September 2012. The applicant’s Notice of Appeal/Petition (“NOAP”) was filed late and his application to file the NOAP out of time was refused by the Board on 22 January 2013. Thus, the applicant’s Torture Risk[4] had been finally determined, and it was not necessary for the Board to re-assess the same in the Board’s Decision.
Amendment
4. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should only be the putative respondent, and the Director should be the putative interested party.
5. Thus, on this court’s own motion, the name of the putative interested party is amended 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, he would be harmed or killed by his neighbour, Tanvir, whom the applicant claimed to be a gangster, the Councillor of Phaliya from 2006 to 2010 and belonged to the Pakistan Muslim League (Noon), due to a land dispute.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 4 June 2026.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
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. The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 2 November 2021.
Discussion
13. 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).
14. 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 ground being advanced by the applicant for the intended judicial review.
15. In assessing the petition by the applicant, the Board arranged an oral hearing on 21 September 2021. Thus, the applicant was given the opportunity to present his case to the Board in person.
16. As can be seen from the Board’s Decision, 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.
17. The Board had laid out its assessment of the credibility of the applicant’s claims in paragraphs 34 to 41 of the Board’s Decision, and it is not necessary to repeat the same here.
18. In gist, the Board found that the applicant’s evidence at the Board’s hearing was confused and was in some respects inconsistent with his previous claims. The applicant’s family including his father, who was the owner of the land until his death, continued to live next to Tanvir for some 15 years after the dispute began and had no problems. The applicant also claimed at the Board’s hearing that he had beaten up Tanvir in their fight, which was contradictory to his previous claim that he was the victim of Tanvir’s attack. The applicant’s family left the village to live with the applicant’s mother’s family in Mirpur after the death of his father and were not involved in the dispute with Tanvir.
19. Given the conflicts in the applicant’s evidence as aforesaid, the Board considered that the applicant’s claims were neither coherent nor plausible and had no credibility. Thus, the Board found that the applicant had not established his claim that he faced serious harm at the hands of Tanvir should he return to Pakistan. His claims about a dispute with Tanvir were either greatly exaggerated or completely untrue. The Board also based its conclusion on the finding that the applicant’s brother, who now owned the land jointly with the applicant, had no problem with Tanvir.
20. For the sake of completeness, the Board explicitly stated that if it were necessary, the Board would find that the applicant could reasonably be expected to relocate to join his family in Mirpur should there be any threat to his safety in his home village.
21. Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on the grounds of BOR 2 Risk, BOR 3 Risk and Persecution Risk under the USM.
22. The Board did not consider availability of state protection to the applicant. However, as the Board found that the applicant did not face a real risk of the proscribed harm if the applicant was refouled to Pakistan, it is not necessary for the Board to consider the availability of state protection.
23. 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 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.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of June 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: 10/06/2026
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: 10/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15763/19/4/21/P3125
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 95/19 (Formerly RBCZ 22/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
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