KHAWAJA WALEED v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

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

Following:

1.  On this court’s own motion, the applicant’s name be amended to “Khawaja Waleed”, 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 extension of time to file 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 7 July 2025 and filed on 10 July 2025, 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 5 June 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/2025/HCAL001582_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 16 January 2024, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant stated his name as “Waleed Khawaja”, but according to his Recognizance, his name should be “Khawaja Waleed”.  He also did not name the putative respondent and the putative interested party correctly, when only the Board and the Director should be so named respectively.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 

5.  Thus, this court makes an order on its own motion to amend the applicant’s name to “Khawaja Waleed”, 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, he would be at risk of harm or would be killed by people from Tehreek-e-Labbaik (“TLP”) whom he did not know personally (“the Enemy”).  TLF was a right-wing religious party which supported Blasphemy Law.  TLF people came to the applicant’s village twice in August 2023 to attack Christians/Catholics there.  Although the applicant and his family were Muslims, the applicant was attacked when he was trying to save his neighbours.  He suffered injuries in the first incident, but was not hurt during the second incident.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

9.  However, the applicant filed Form 86 on 10 July 2025, which was more than 13 months after the Board’s Decision (made on 5 June 2024).  The applicant was hence late for more than 10 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant stated in a handwritten document dated 7 July 2025 annexed to his supporting affirmation dated 17 June 2025 that he only received the Board’s Decision by way of a letter from the Board on 27 May 2025.  He also attached two letters from the Board dated 5 June 2024 and 20 May 2025 respectively informing him about the Board’s Decision.  This court will treat that the applicant was making an application for extension of time to file the Leave Application. However, he did not provide any reason why he received the Board’s Decision so late in his supporting affirmation.

12.  At the oral hearing before this court on 4 December 2025, when this court asked the applicant for the reason for the delay, he said that he was in prison from 4 February 2025 to 24 April 2025 and was detained by the Immigration Department since his release from prison.  He never received the Board’s Decision by post, even though he confirmed that his address before his imprisonment was correct.  He also reported to the Immigration Department every week prior to his imprisonment but no one informed him about the Board’s Decision.  He only received a copy of it after he wrote to the Immigration Department during his detention to ask for the Board’s determination of his claim.  He said that he only received the Board’s letter dated 5 June 2024 in June 2025 while he was still in detention.

13.  The delay of more than 10 months is very substantial and the explanation given by the applicant is not satisfactory.  There was no reason offered by the applicant to explain why he did not receive the Board’s Decision by post at his address prior to his imprisonment.

14.  More importantly, as discussed below, there is no merits of the intended judicial review at all.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application.  The Leave Application can be dismissed on the ground of being made out of time alone.

15.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 December 2025.

17.  At the hearing, apart from explaining the reasons for his delay in filing the Leave Application, the applicant confirmed that he would rely on the grounds stated in the document annexed to his supporting affirmation as his grounds for judicial review.

18.  He further requested this court to look at the international law as it was killing in the name of religion.  Even the ministers were not safe in Pakistan.

Grounds for judicial review

19.  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).

20.  In the document annexed to the applicant’s supporting affirmation, the applicant first described two incidents which he allegedly encountered in August 2023 in Pakistan.  Both incidents had in fact been presented to the Board for assessment.

21.  He also advanced a few reasons why he was not satisfied with the Board’s Decision, which are summarised as follows:-

(1)   The Board said that the enemy was unknown to him.  However, the enemies came in thousands.  He was not aware of all of them but he was familiar with the leading people.

(2)   The Board said that the police took action.  However, the police showed no response in both incidents and only arrested a few people.  No one from the top leaders was even bothered to give any punishment.

(3)   The Board said that his family remained safe.  However, it was only because TLP was a religiously based party and followed Islamic law which forbade the harming of females and children.

(4)   The Board found that he could go anywhere in Pakistan as he was an educated person with bunch of experience in work.  However, his last post was director of marketing in the capital city so he was not willing to destroy his professional life.  Islamabad and Rawadlindi were the cities where TLP held offices.  No place was safe for him as he was a declared criminal by the party.  He was wanted on their list.

(5)   The Board said that everything was under control now, so he would be fine.

22.  The applicant also cited a few incidents in Pakistan where people including a politician, a bank manager and others were killed.

23.  As aforesaid, the applicant did not elaborate on the above grounds at the oral hearing. He just requested this court to look at the international law, as his enemies were killing people in the name of religion.  It was therefore not safe in Pakistan.  

Discussion

24.  First of all, the background facts of the applicant’s case, which mainly consisted of the two incidents of attacks by TLP people against Christians/Catholics in the applicant’s village, had been considered by the Board.  The applicant’s alleged risks had also been 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.

25.  The applicant’s reasons for his dissatisfaction with the Board’s Decision as outlined above were all related to the Board’s findings in relation to his case.  Again, he cannot challenge the Board’s findings of facts unless there are errors of law, procedural unfairness or irrationality.

26.  The applicant claimed to be on a wanted list.  However, this information was not presented to the Board.  Similarly, the incidents that the applicant cited in the document annexed to his supporting affirmation were not presented to the Board for its assessment.

27.  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.

28.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

29.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review.  There is no reason for this court to consider his non-refoulement claim afresh based on these new materials or to go through the international law concerning the situation in Pakistan as requested by the applicant.

30.  In the premises, none of the grounds contained in the document annexed to the applicant’s supporting affirmation or what he said at the oral hearing before this court could establish any valid ground to challenge the Board’s Decision.

31.  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, supra).

32.  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 valid ground being advanced by the applicant for the intended judicial review.

33.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 March 2024.  The applicant was present and was thus given the chance to present his case to the Board in person.

34.  The Board found the applicant’s claim lack of credibility, and that he had only made bare assertions without producing any evidence regarding the two alleged incidents in August 2023.  The Board found no evidence to show the existence of the two incidents and that the Enemy was a public official or acting in any official capacity.  The applicant’s dispute with the Enemy, if any, was only private in nature.  Even if those incidents existed, the physical and mental harm, if any, inflicted by the Enemy on the applicant, actual or perceived, had not attained the minimum level of severity.  In any event, the Board found it apparent from the information provided that the applicant was not a specific target during the incidents and in fact, he did not know any of the Enemy.

35.  There was also no evidence to show that the Enemy had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or that the applicant could bring himself within any of the grounds enumerated in the definition of “refugee” in Article 1A(2) of the RC[1].

36.  Contrary to the applicant’s assertion that the police would not protect him as TLP was a strong party, the Board found from reliable country of origin information (“COI”) that despite inadequacies in Pakistan, reasonable state protection was available to the applicant.

37.  Moreover, the Board found that the applicant had moved to Islamabad prior to his departure from Pakistan and nothing eventful happened to him there.  The Board found the threats by the Enemy, if any, was a localized one around his village only, and that it would not be unduly harsh for the applicant, being young with years of work experience and free of health issues, to relocate and reestablish himself in other parts of Pakistan.

38.  Thus, the Board found the applicant’s claim for protection had failed on all the applicable grounds under the USM.

39.  The danger that the applicant allegedly would face upon his refoulement to Pakistan had been duly assessed but rejected by the Board.

40.  The assessment of evidence, COI and risk of harm was primarily within the realm 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 conclusion.

41.  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. 

42.  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

43.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused, and the Leave Application is dismissed for being made out of time and also for lack of merits.

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