SHAHZAD AMIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 354/2021

[2026] HKCFI 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 354 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 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 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 the decision of the Torture Claims Appeal Board (“the Board”) dated 8 March 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/HCAL000354_2021_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 rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 May 2020 and confirmed the same.

Amendments

3.  In Form 86, the applicant named the Board and Non-Refoulement Claims Petition Office as the putative respondents but spelt their names wrong.

4.  In fact, only the Board should be the putative respondent. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.  The applicant also named himself as the putative interested party, when the Director should be so named.

6.  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

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by 3 individuals named Mudassar, Shabeer and Anwar (collectively “his Enemies”) who were PTI supporters in the applicant’s home town. PTI was the ruling party. The applicant claimed that he and his father were supporters of another party PML(N). During the general election, the applicant was asked by his Enemies to vote and work for PTI, but the applicant turned down the requests. The applicant claimed to have been attacked once by 10 PTI people including Mudassar and on another occasion by people he believed to be connected to those in the 1^st attack.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 8 January 2026.

10.  When this court asked the applicant for the grounds of his intended judicial review, he merely said that his life would be in danger in Pakistan because he supported PML(N) and PTI was after him. The applicant also claimed that his brother was attacked in the previous year and was seriously injured. Hence, his brother told him that Pakistan was not safe for him.

11.  Apart from that, the applicant said that he had documents supporting his claims. However, this court explained to him the role of the court in a judicial review, and it was not for this court to receive new evidence. Thus, this court would not allow him to submit new documents.

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.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 16 March 2021. He merely stated in the affirmation that he was not satisfied with the Board’s Decision and his life was still in danger in his home country.

14.  At the oral hearing, he merely repeated his threat from PTI and added that his brother was attacked in the previous year. He also wanted to submit new documents to support his claim.

Discussion

15.  First of all, the applicant’s danger and risks had already 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.

16.  As said, this court has explained to the applicant at the oral hearing the role of the court in a judicial review. His assertion that his brother was attacked the previous year had never been presented to the Board for consideration.

17.  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.

18.  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.

19.  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 accept any new evidence from the applicant in support of his non-refoulement claim or to re-assess his claim afresh.

20.  In the premises, what the applicant said at the oral hearing before this court could not establish any valid ground to challenge the Board’s Decision.

21.  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).

22.  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 specific ground being advanced.

23.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 October 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

24.  After due consideration of the law and the evidence, the Board rejected that the applicant’s dispute with his Enemies was a political issue. The applicant’s own evidence at the Board’s hearing was that his dispute with them actually arose from a private land dispute only.

25.  Although the Board accepted that the applicant might have been attacked twice, the applicant had not adduced credible evidence to prove that PTI was the culprit behind the attacks. The Board also rejected that PTI instigated the second attack on the applicant. The alleged attacks on the applicant did not involve the ruling party, the government or any authority in the country. The applicant failed to show that he was ill-treated for any Convention reasons.

26.  The Board was of the view that the two attacks the applicant had allegedly encountered were of a relatively minor nature. The attackers could have caused him more serious harm, but they did not do so.

27.  As to state protection, the Board found that the applicant did not have evidence to show that the police had not taken any actions on his reports about the attacks. Country of origin information (“COI”) showed that although there was room for improvement, reasonable state protection was available to the applicant in Pakistan.

28.  Furthermore, given the fact that the applicant did not encounter any threats nor risks when he moved from one place to another within the country, the Board found that the applicant, being young with work experience in tailoring and running his own boutique, could find a job in tailoring elsewhere in his home country.

29.  Thus, the applicant’s risks on all the applicable grounds under the USM had been duly considered but rejected by the Board.

30.  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.

31.  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.

32.  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

33.  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