Case Document

100%Judiciary

HCAL 2098/2020

[2026] HKCFI 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2098 of 2020

BETWEEN
	Fayyaz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Director’s Decision dated 21 April 2016 and Further Decision dated 26 January 2017, collectively called the Director’s Decisions and the Decision dated 9 October 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decisions.

2.The applicant asked for a hearing. However, he was absent at the hearing on 1 December 2025. I shall deal with his application on the papers.

3.The Board’s Decision has superseded the Director’s Decisions and his application for leave for judicial review of the Director’s Decision fails in limine and is dismissed.[1]

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.The applicant is a national of Pakistan. He is an illegal immigrant, having entered Hong Kong illegally by boat on 26 February 2008. He lodged a non‑refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his paternal uncle due to a land dispute. He was attacked by his uncle on many occasions whilst in Pakistan and sustained injuries.

6.Details of his claim are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002098_2020_files/the_Board's_Decision.pdf

The Director’s Decisions

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of Notice of Decision dated 21 April 2016(“the Director’s Decision”), the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk because it was unsubstantiated. By Notice of Further Decision dated 26 January 2017 (“the Director’s Further Decision”), the Director dismissed the applicant’s claim on BOR 2 risk for the same reason.

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board. On 12 June 2016, the Board conducted a hearing, which was adjourned to 26 January 2017 due to the applicant’s sickness. The applicant elected not to give evidence at the hearing. The Board therefore re-considered all the materials again for several hours. [60] The Board bore in mind the case of Re Hidayah [2018] HKCA 595, in particular the paragraph below:

“Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

10.The Board then stated:

“I consider it is for the Appellant to decide whether or not to take the opportunity to participate in the hearing. I draw no negative inference from his decision to not participate. In saying that, the Appellant’s non‑participation means I have not had the opportunity to discuss with him issues that arose from the material in the HB [Hearing Bundle].”

11.Having considered the evidence, the Board made the findings below.

(1)  From the Hearing Bundle materials, the Board found the applicant’s account contained vagueness, uncertainties, contradictions, unlikelihoods, and the like, which called for expansion, explanation, elucidation and clarification. [55]

(2)  The Board had in mind of the issues that required clarification from the applicant. [63] Because of the applicant’s refusal to give evidence, those issues remained unclear to it. Therefore, it was unable to make findings in his favour. The issues of state protection and internal relocation also remained unclear to the Board.

(3)  The applicant failed to establish he had a well-founded fear of persecution. [68]

(4)  He does not face a real risk of being deprived of his right to life if he is refouled to the Risk State. [68]

(5)  He does not face a real risk of being subjected to torture or CIDTP if he is refouled to the Risk State. [71]

(6)  He does not face a real risk of torture if he is refouled to the Risk State. [72]

12.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 20 October 2020 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said that the Board did not consider his right to life and it did not give sufficient time for him to prepare the evidence for his appeal.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.It seems that the Board had not advised the applicant of his obligations under section 37ZA of the Ordinance that he must make prompt and full disclosure of all material facts to the Board. Section 37ZD of the Ordinance provides that the Board may take into account of his refusal to do so as damaging his credibility. The applicant simply has no option not to disclose the facts in support of his claim to the Board. Whether the Board will take this issue to determine his credibility is for the Board to decide. In this case, the Board said that it drew no negative inference against the applicant without giving any reason why it should take this stance despite section 37ZD of the Ordinance. However, I find that this deficiency does not give the applicant any reasonable prospect of success in the intended judicial review because it has only given the benefit of doubt to him without causing any injustice to his case.

19.The Board had taken on board of the views of the Court of Appeal in Re Hidayah, which allowed the appeal because the applicant was absent and the Board said it was unable to determine whether there was a real risk to the applicant if she returned to her country. In that case, the Board did not make finding of the facts of the case, but only relied upon the burden of proof principle to dismiss the appeal.

20.The Court of Appeal considered that the Board has a duty to make a finding of the facts in M v Torture Claims Appeal Board; and Director of Immigration [2021] HKCA 1523, Hon Poon CJHC, Barma JA and Au JA, 19 October 2021

“21. … … the Board is under a duty to make its own finding of facts after a rehearing ([70] – [71] of IL v TCAB & Anor (HCAL238/2015, 11 July 2017, unreported)). …”

21.In this case, although the Board did say that it was unable to making finding in favour of the applicant’s claim, it specifically stated that it had considered all the materials in the Hearing Bundle and it had found the facts as set out in paragraph 11. It is clear that the Board rejected the applicant’s evidence in support of his claim, and found against him on all the applicable risks.

22.The applicant’s reasons under paragraph 14 do not advance his case because he did not raise sufficiency of time for preparation of the appeal before the Board. The Board had clearly considered BOR 2 risk.

23.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 7^th day of January 2026

(Allen LEE)
for Registrar, High Court

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:
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)).		Sent to the Applicant on 7/1/2026 Fayyaz Applicant’s ref. no: Nil.		Sent 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 7/1/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3587/16/5/5/P938 Director of Immigration Putative Interested Party’s ref. no.: RBCL/1367/08(CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

Cites 7 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration