ZAHEER HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 379/2021

[2026] HKCFI 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 379 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.  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 the decision of the Torture Claims Appeal Board (“the Board”) dated 28 January 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/HCAL000379_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 February 2015 and the Director’s further decision dated 31 May 2017 and confirmed the same.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by a man named Choudary Sulman (“Sulman”), his sons and his armed men. The applicant claimed that he confronted Sulman on an occasion when his father was reasoning with Sulman due to Sulman’s extension of the boundary of his land into the applicant’s family land. On that occasion, both the applicant and Sulman were injured. The applicant was pursued by Sulman and his sons since then.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 January 2026.

6.  At the hearing, the applicant said that he could not talk because he was sick due to high blood sugar level. He presented some documents to this court, but they were just to show that he had some medical appointments with the Hospital Authority. The documents did not show that the applicant was unfit to attend court. This court also found that the applicant could talk normally and hence continued to hear his case.

7.  The applicant then asked this court for mercy because of the tension in Pakistan. He said that Pakistan was not safe and he was not a Pakistani. He came from Azad Jammu and Kashmir (“AJK”) where there is a Pakistani side and an Indian side. He was from the side occupied by Pakistan. AJK was a country before and they wanted to be a country again.

8.  The applicant claimed that if he were to go back to his country, the Pakistani army would arrest him because he was a freedom fighter. When this court asked the applicant whether he had told all these matters to the Board, he said that he tried to but could not because he was scared. He further said that he just wanted his country to be a separate country because he did not like both India and Pakistan.

9.  The applicant then requested for mercy to allow him to stay in Hong Kong because he had been in Hong Kong for 10 to 15 years without any criminal record and he was getting treatments for his sickness here.

Grounds for judicial review

10.  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).

11.  However, the applicant did not assert any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 March 2021. He merely stated in the affirmation that he would be killed by his enemy if he returned.

12.  What the applicant said at the oral hearing did not amount to any valid ground for the intended judicial review either.

Discussion

13.  First of all, this court notes that it was never the applicant’s case before the Board that he would be arrested by the Pakistani army if he returned to his country. As can be seen from paragraph 53 of the Board’s Decision, the applicant had not claimed to fear harm for any other reasons. His only fear came from Sulman, Sulman’s sons and armed men.

14.  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.

15.  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.

16.  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 re-assess his claim afresh based on his new allegation that he would be arrested by the Pakistani army upon his return to Pakistan.

17.  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.

18.  The applicant’s risk from his enemies, ie Sulman, Sulman’s sons and armed men, had been assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

19.  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).

20.  Thus, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.

21.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 4 November 2019 but the applicant was absent. The applicant also failed to respond to the Board’s letter on the same date advising him that if he still wished to attend a hearing, he should submit a written explanation of his failure to attend together with documentary evidence in support. Thus, the Board proceeded to assess his claim based on all the materials before it.

22.  The Board found on the materials before it that the applicant did not leave Pakistan and could not return for the reasons he had claimed. On the evidence before it, the Board did not accept that the applicant was involved in a fight with Sulman and was the subject of an ongoing search by Sulman and Sulman’s family members in order to harm or kill him.

23.  Based on its finding, the Board concluded that the applicant’s non-refoulement claim was not substantiated on any of the applicable grounds under the USM.

24.  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 not necessary for the Board to consider the availability of state protection.

25.  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).

26.  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.

27.  The finding of facts including the assessment of evidence 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.

28.  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.

29.  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

30.  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