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HCAL 982/2021
[2026] HKCFI 2671
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 982 OF 2021
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BETWEEN
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Alam Zubair |
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”, “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 25 June 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 12 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-
“The Decision of the Director of Immigration dated 18th January 2021.
The Decision of the Adjudicator dated 25th June 2021.”
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 25 June 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 January 2021 (“the Director’s Decision”). At the oral hearing before this court on 30 April 2026, the applicant confirmed that only the Board’s Decision should be the subject matter of the Leave Application.
3. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000982_2021_files/the_Board's_Decision.pdf
4. 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”). Accordingly, the Board refused the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
5. The applicant named 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 putative interested party in Form 86.
6. In fact, the adjudicator was making the Board’s Decision in her capacity as a member of the Board. Moreover, as mentioned, the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application. Hence, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
7. 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 to “Torture Claims Appeal Board’s decision dated 25 June 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 he feared that if refouled to Pakistan, he would be harmed or killed by Amjad Khan, his men and a group called the Khan Group, due to a land dispute and as the applicant had hit Amjad Khan with a stick, causing him to become unconscious.
Oral hearing
10. The applicant requested for an oral hearing of the Leave Application and his case was heard on 30 April 2026.
11. When this court asked the applicant to elaborate on the grounds for 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 12 July 2021, he merely replied that he would rely on the grounds stated therein and had nothing else to say.
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 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 those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
14. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing.
Discussion
15. The grounds contained in the said document with the title “Grounds on which Relief is sought” are all very general. Some of the grounds 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 (see Re Moshsin Ali [2018] HKCA 549). The applicant had also confirmed that the Board’s Decision should be the only 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.
16. There are a total of 4 paragraphs in the said document. Paragraphs 2, 3 and 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.
17. 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.
18. In any event, the Board did assess the applicant’s risk of right to life but was not satisfied that the applicant would suffer the death penalty, arbitrary deprivation of his life or genocide on the basis of a land dispute or because he assaulted Amjad Khan.
19. 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”.
20. Thus, the first paragraph that was contained in the applicant’s said document could not establish any valid ground to challenge the Board’s Decision when the assertions are so vague and general without any requisite particulars related to the applicant’s case.
21. The applicant’s alleged danger in his home country had been duly 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.
22. 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).
23. 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.
24. This court notes that the Board assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh. The Board’s reasons for not having an oral hearing were laid out in details in paragraph 32 to 37 of the Board’s Decision. Simply put, the Board was satisfied that the applicant had provided everything he wished, and the applicant’s case could be justly determined without a hearing.
25. Moreover, the Board had invited the applicant by way of its letter dated 30 March 2021 to make submissions on the issue of internal relocation by 16 April 2021. The applicant did not reply to the Board and did not contact the Board to request an extension of time to provide a response or any further information.
26. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).
27. Thus, it was not a must for the applicant to have an oral hearing before the Board. The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim without reservation. These included the two assaults he encountered, his concerns about being located by Amjad Khan and his men due to their connections, and the reasons he gave previously for not being able to relocate to other places in Pakistan.
28. The Board did not challenge the credibility of the applicant’s case, and accepted the factual basis of his claims that he and his brothers had a dispute with Amjad Khan and his men in relation to a land owned by the applicant and his brothers which they refused to sell to the Khan Group.
29. However, the Board had given full and justified reasons in paragraphs 41 to 47 of the Board’s Decision for being not satisfied that Amjad Khan or his men had any continuing interest in the applicant such that they would seek to find and harm him upon his return to Pakistan.
30. In gist, the Board found no evidence that (1) Amjad Khan and his men were still interested in pursuing the applicant after they had taken revenge on the applicant’s attack on Amjad Khan; (2) Amjad Khan and his men were still interested in pursuing the ownership of the land; and (3) Amjad Khan and his men would have any knowledge of the applicant’s return to Pakistan, or the means or motivation to pursue the applicant to other parts of Pakistan.
31. Moreover, the Board found that it would not be unreasonable or unduly harsh for the applicant to relocate to another part of Pakistan upon refoulement. The applicant received 12 years of education and was self-employed for 23 years. The applicant’s own evidence also indicated that he lived safely for several months in Lahore, Karachi and Islamabad without any threats or harm from the Khan Group or any attempts made by them to locate him.
32. In view of its findings that Amjad Khan or the Khan Group did not have any continuing interest in the applicant and that internal relocation was a viable option to the applicant, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
33. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
34. 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.
35. 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
36. For reasons aforesaid, the Leave Application is dismissed.
Dated the 13th day of May 2026
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( Gladys 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 the applicant’s 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: 13/05/2026
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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17576/21/1/72/P3413
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 822/20 (formerly RBCZ 42/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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