|
HCAL 327/2021
[2026] HKCFI 544
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 327 OF 2021
|
BETWEEN
|
| |
Muzzfar Asjad |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 January 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 10 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
“The Decision(s) of the Director of Immigration dated 18th October 2018.
The Decision of the Adjudicator dated 11th January 2021”.
2. The Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement protection on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”) on 18 October 2018 (“the Director’s Decision”). The Torture Claims Appeal Board (“the Board”) made a decision dated 11 January 2021 (“the Board’s Decision”) in respect of the applicant’s appeal against the Director’s Decision.
3. At the oral hearing before this court on 6 January 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000327_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds (except Torture Risk[4]) under the USM. Hence, the Board dismissed the applicant’s petition against the Director’s Decision and confirmed the same.
5. The applicant had previously made a torture claim and his claim was rejected by the Director and the Board on 5 June 2013 and 27 November 2013 respectively. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to deal with it again in the Board’s Decision.
Amendments
6. The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any the putative interested party in Form 86.
7. In fact, the adjudicator was only making the Board’s Decision in his capacity as a member of the Board. Moreover, as only the Board’s Decision is the subject of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
8. 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 respondent at all.
9. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
10. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s Decision dated 11 January 2021”.
The applicant’s case
11. 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.
12. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by a local gang named Khokhar Brothers (“KB”) as they wanted the land used to be co-owned by his father and his uncle. KB was linked with the Pakistan People Party (“PPP”) which was the ruling party of Pakistan. The applicant claimed that KB shot his uncle dead, and his father died of heart attack after an encounter with KB. Thereafter, the applicant became the sole owner of the wanted land and KB people threatened to kill him and assaulted him.
Oral hearing
13. The applicant requested for an oral hearing of the Leave Application and his case was heard on 6 January 2026.
14. When this court asked the applicant to elaborate on the grounds of his intended judicial review which were stated in a document with the title “Grounds on which Relief is sought” annexed to his supporting affirmation dated 10 March 2021, he replied that he did not know what were written there. He also failed to elaborate on any of the grounds written there after he was given the chance to read the document. He merely added that he was still facing the same problem in his country.
Grounds for judicial review
15. 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).
16. The applicant did not advance any grounds for judicial review in Form 86. The contents of the said document with the title “Grounds on which Relief is sought” were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
17. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He only mentioned that he was still facing the same problem in his country, which was not a ground for judicial review.
Discussion
18. As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review. The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
19. Paragraphs 2 to 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.
20. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.
21. In any event, the Board did assess the applicant’s risk of right to life but concluded that there was no evidence that he would be at risk of death upon refoulement.
22. In the same paragraph, the applicant also alleged that the Board failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.
23. This court notes that the applicant made his torture claim and a further non-refoulement claim on the remaining grounds under the USM in as early as 2013. The Director rejected his non-refoulement claim in 2018 and the Board heard his petition in late 2019. Thus, the applicant has almost 6 years to prepare for his petition before the Board’s hearing. It is clear that the applicant did have ample time to prepare and/or collect any documents he wished to submit in support of his claims. Thus, the applicant’s complaint that the Board failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal is totally groundless.
24. Furthermore, the Board had explicitly stated in paragraph 142 of the Board’s Decision that it had read the several documents submitted by the applicant but found those documents did not advance his case any further. Thus, the applicant did have the opportunity to submit evidence to the Board.
25. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
26. Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case, or are completely unfounded.
27. The applicant’s alleged danger in his home country had therefore 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.
28. 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).
29. 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.
30. In assessing the appeal by the applicant, the Board arranged an oral hearing on 18 December 2019 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
31. As can be seen from the Board’s Decision, the Board found numerous inconsistencies, implausibilities, incredibilities and impossibilities in the applicant’s evidence. The Board thus concluded that the only reasonable inference that could be drawn was that the applicant had made up the story about KB and the land and forgot the details of the script from time to time.
32. As said, the Board had read the several documents submitted by the applicant but found those documents did not advance his case any further.
33. The Board rejected the applicant’s evidence in its entirety and found the applicant’s non-refoulement claim failed on all the applicable grounds (except Torture Risk, which had been determined previously).
34. Nevertheless, the Board went on to assess the applicant’s claimed risks on the assumption that his evidence was credible. However, the Board still found that there was no evidence to show that the applicant would be at risk of death, ill-treatment, torture or persecution if he were to return to Pakistan.
35. Even on the applicant’s own evidence, he was only attacked once and was not located by KB when he stayed away from his home area. KB could have seriously harmed or even killed the applicant at the only attack, as they were allegedly armed with guns apart from wooden sticks. The Board found it clear that KB did not really want to kill the applicant. The applicant’s dispute with KB only arose from a land dispute, which was private in nature. The Pakistani government was not involved in the ill-treatment of the applicant, and the ill-treatment that KB inflicted on him, if any, was not for a Convention Reason.
36. The Board was satisfied that reasonable state protection was available to the applicant upon his return. The Board also found that the applicant, being young with 12 years of education and had demonstrated his capability to survive in other places in Pakistan as well as in Hong Kong on an illegal basis, should be able to establish himself anywhere in his home country to avoid KB, which was only a local gang with 10 to 20 people. The Board found that it was not unduly harsh or unreasonable for the applicant to relocate to other areas in Pakistan.
37. Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM.
38. The finding of facts, including assessment of evidence and risk of harm, was solely within the ambit 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 conclusion.
39. For the sake of completeness, this court has noticed that the adjudicator of the Board, Mr Chan Pik-kiu Michael, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.
40. Mr Chan was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.
41. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
42. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Chan was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.
43. 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.
44. 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
45. For reasons aforesaid, the Leave Application is dismissed.
Dated the 28th day of January 2026
| |
( Irene LEE )
for Registrar, High Court
|
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 the applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
28 January 2026
Applicant’s ref. no:
Nil |
|
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:
28 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14086/18/10/428/P2795
TCAB 531/13/6/56/P412
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3680/18
(formerly as RBCZ 2001537/14)
QA T/C 330/13
(formerly INCZ/79/13)
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.
|