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HCAL 385/2021
[2026] HKCFI 937
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 385 OF 2021
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BETWEEN
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Nassor Yasir Hashoul |
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 respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 March 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 18 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 27 November 2020 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 18 March 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 June 2019 (“the Director’s Decision”). The date of the decision as appeared in Form 86 was in fact the date of the Board’s hearing. The applicant also confirmed at the oral hearing before this court on 22 January 2026 that the Board’s Decision was the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000385_2021_files/the_Board's_Decision.pdf
3. The Board decided that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
4. In Form 86, the applicant named “HONG KONG IMMIGRATION TORTURE CLAIM BOARD” as both the putative respondent and the putative interested party.
5. In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party.
6. As said, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
7. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s decision dated 18 March 2021”.
The applicant’s case
8. 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.
9. In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, he would be at risk of harm due to his investigation of his father’s death. He suspected his father had been poisoned by political enemies either from within his own party or from the ruling party. He claimed that his father was a famous politician in Zanzibar, a founding member of the Civic United Front (“CUF”), a member of parliament (“MP”) between 1995 and 2000, and also a former minister in the government.
Oral hearing
10. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 22 January 2026.
11. At the oral hearing, when this court asked the applicant for the grounds of his intended judicial review, the applicant merely complained that the Board was not fair and was very harsh on him. The applicant alleged that his late father was a MP between 1995 and 2000 and he was not lying about it, but the Board did not believe him.
12. The applicant also said that the political situation in Tanzania was getting worse day by day and he was from Zanzibar, which is an island of Tanzania. There were a lot of political issues between the mainland of Tanzania and Zanzibar. He was not satisfied or happy with the government of Zanzibar, nor the government of Tanzania, but the political issues were just too much that he could not tell this court all of them even in one day. He added that he would be happy if he could be given the opportunity for his case to be heard again.
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 grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 March 2021.
15. What he said at the oral hearing did not amount to any valid ground for the intended judicial review at all.
Discussion
16. First of all, the applicant’s assertions at the oral hearing about the political situation in Tanzania and Zanzibar were not presented before the Board for its assessment of his claim.
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, and there is no reason for this court to re-assess the applicant’s non-refoulement claim.
20. The issue of whether the applicant’s father was a MP had already been considered but rejected by the Board. If the applicant is asking this court to re-assess his claims, it is not permissible in a judicial review.
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, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
23. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 November 2020. The applicant was present and was given the chance to present his case to the Board in person.
24. As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence.
25. The applicant did not adduce any evidence to support his claim that his father was a famous politician and a former MP. The identity of the applicant’s father, which formed the basis of why the applicant would be pursued as claimed when he was investigating his father’s death, was critical in assessing the credibility of the applicant’s non-refoulement claim. Thus, the Board had conducted extensive research on its own to verify the applicant’s claim that his father was a former MP in Tanzania between 1995 and 2000.
26. However, despite attempts to search for his father’s name and names with similar spelling or with similar sounds, the Board could not find any person that corresponded at all with the profiles given by the applicant for his father. The Board was of the view that if the applicant’s father was a former MP and a former minister in the government, it was very difficult to understand why he simply did not exist in any of the records of parliamentarians, government figures or senior members of the CUF available online.
27. Furthermore, if there was any suspicion that such a famous person had been subjected to poisoning by his political enemies, it was very difficult to understand why there would be no record of this in any press report, human rights report, opposition newspaper or any similar source.
28. The Board found the applicant’s explanation that his father’s political enemies might have somehow expunged his records from the public domain to be manifestly implausible. The Board found that this lacuna in the evidence was a fundamental and very serious negative credibility indicator which struck at the core of the account given by the applicant and undermined every subsequent aspect of it.
29. The Board also found the applicant’s inability to offer any descriptive testimony about the alleged kidnap and beating led to the conclusion that the alleged incident was lacking the ring of truth, and was suggestive of a learned rather than lived experience. Moreover, the Board found that the other aspects of the applicant’s account, including the burning of his shops and car, even at their highest, were only reported to him second or third hand.
30. Based on its findings on the applicant’s credibility, the Board considered that the applicant was not entitled to the benefit of doubt in relation to alleged events he did not see himself and for which he could provide no reliable evidence.
31. The Board further considered the fact that the applicant did not make a claim for non-refoulement protection until more than twelve months after his arrival in Hong Kong did not appear to be the action of a person in flight from harm and in need of protection.
32. Based on its findings, the Board concluded that none of the assertions the applicant had made could be given any credence whatsoever. Apart from the undisputed fact that the applicant was a national of Tanzania, the Board found the applicant had not established any of the facts he asserted. The Board found that merely on the basis of being a Tanzanian male, the applicant could not establish any risks on any of the available grounds under the USM to claim protection.
33. 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.
34. 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).
35. 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.
36. The finding of facts, including the 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.
37. 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.
38. 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
39. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of February 2026
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( Irene 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: 16 February 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: 16 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16042/19/7/8/TA83
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 10174/19 (T2S14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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