Yousaf Tazeem v. Torture Claims Appeal Board

HCAL 1984/2020

[2025] HKCFI 5379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1984 OF 2020

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;

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 17 September 2020”.

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 5 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “Determination of Appeal/Petition without a Hearing issued by the Torture Claims Appeal Board dated 17 September 2020 (15 pages in total);” and

(2)  “Notice of Further Decision issued by Immigration Department dated 6 December 2018 (18 Pages in total).”

2.The Torture Claims Appeal Board (“the Board”) made a decision dated 17 September 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 December 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001984_2020_files/the_Board's_Decision.pdf

3.At the oral hearing before this court on 29 August 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed with this court that the Leave Application was in respect of the Board’s Decision only.

4.Thus, it is no longer necessary for this court to deal with the Director’s Decision in the Leave Application.

5.The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendments

6.In Form 86, the applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the 1^st putative respondent and “The Director of Immigration” as the 2^nd putative respondent. However, as confirmed by the applicant at the oral hearing, only the Board’s Decision should be considered in the Leave Application. Thus, the putative respondent should only be the Board.

7.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.

8.The applicant also named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the putative interested party, when the Director should be so named.

9.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

10.As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision. Thus, on this court’s own motion, it is so amended.

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 raised his non-refoulement claim because if refouled to Pakistan, he being a Sunni Muslim feared harm from Shia Muslims, as he refused to convert to Shia Islam.

Oral hearing

13.The applicant requested for an oral hearing of the Leave Application and his case was heard on 29 August 2025.

14.As aforesaid, the applicant first confirmed that the Leave Application was in respect of the Board’s Decision only.

15.In his supporting affirmation dated 5 October 2020, the applicant asserted some grounds to challenge the Board’s Decision. When this court asked the applicant to elaborate on the grounds stated in the affirmation, the applicant merely said that he could not do so and he had nothing further to say.

Grounds for judicial review

16.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).

17.The applicant did not advance any grounds in his Form 86. The grounds that were asserted in the applicant’s supporting affirmation are summarised as follows:-

1.  Neither the Director nor the Board have taken his unique situation into account fairly and sequentially.

2.  He was deprived of legal assistance and the Duty Lawyer Service no longer represented him after the Director’s Decision.

3.  He was deprived of language assistance. The Board’s Decision was never read or translated to him. The Board was insensitive, unfair and possibly unlawful to allow its decision to be written in a language that he could not understand.

4.  There was wrongful case management on the part of the Board in that it rejected his claim without having first made enquiries with him, or given him an opportunity to clarify.

5.  The Board was biased and made its determination based on assumptions without allowing him an opportunity to explain or elaborate himself, especially the Board had challenged his credibility.

18.The grounds as stated above was 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.

Discussion

19.First of all, the applicant’s allegations in his grounds 1, 4 and 5 lack specificity.

20.For ground 1, the applicant did not mention what unique situation of his was not taken into account fairly and sequentially.

21.Grounds 4 and 5 seemed to suggest that he was not afforded an oral hearing, or that he was not given an opportunity to clarify, explain or elaborate himself when the Board found issues in his credibility.

22.However, these assertions were plainly untrue. The Board gave the applicant the opportunity to make submissions to it and afforded the applicant an oral hearing on 6 January 2020. As can be seen in the Board’s Decision, the Board did ask the applicant questions relating to his claim and the applicant answered them. The fact that the Board found significant inconsistencies in his evidence and rejected his appeal/petition did not mean that he was not given an opportunity to explain or clarify himself.

23.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”.

24.Thus, the general assertion of unfairness put forward by the applicant cannot help the applicant at all.

25.In grounds 2 and 3, the applicant alleged that there was a lack of legal advice and language assistance. However, the applicant was assisted by a lawyer from the Pilot Scheme Office in the preparation of his Non-refoulement Claim Form. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.

26.Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

27.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.

28.It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

29.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).

30.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.

31.As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully but found that the applicant was not a credible witness due to the multiple inconsistencies in his evidence, as well as his implausible evidence and non-persuasive explanations. The Board had the impression that the applicant was inventing evidence in response to its questions.

32.Although the Board accepted that the applicant was a Sunni Muslim, it rejected the applicant’s claim that Shia Muslims ever assaulted or threatened him at any time. It rejected too that the Shia Muslims ever sought to convert the applicant to Shia Islam. The Board rejected the applicant’s claims that he incurred any injuries and went to the United Arab Emirates, Karachi and/or came to Hong Kong in fear of harm from Shia Muslims. The Board considered that the applicant had fabricated the claims so as to create a basis upon which to apply for non-refoulement protection in Hong Kong.

33.The Board had also discussed and considered country of origin information (“COI”) for Pakistan in relation to sectarian violence between Sunni and Shia Muslims in Pakistan. Based on these COI materials, the Board considered that there was only a remote or speculative risk, and therefore not a real risk, that the applicant would face any of the proscribed harm from Shia Muslims because he was a Sunni Muslim.

34.In view of the Board’s findings as summarised above, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

35.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.

36.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).

37.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.

38.The finding of facts 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.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.

40.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

41.For reasons aforesaid, the Leave Application is dismissed.

Dated the 11^th day of November 2025

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