Khan Nasir v Torture Claims Appeal Board

HCAL 359/2021

[2026] HKCFI 532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 359 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 the applicant being absent 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”.

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 16 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 4 March 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/HCAL000359_2021_files/the_Board's_Decision.pdf

2.  The Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement protection on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”) on 16 May 2018 (“the Director’s Decision”). The Torture Claims Appeal Board (“the Board”) made the Board’s Decision in respect of the applicant’s petition against the Director’s Decision.

3.  The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds (except Torture Risk[4]) under the USM. Hence, the Board dismissed the applicant’s petition against the Director’s Decision and confirmed the same.

4.  The applicant had previously made a torture claim and his claim was rejected by the Director on 6 February 2014. The applicant did not file an appeal against that decision. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendment

5.  The applicant named “Immigration Department, The Government of Hong Kong Special Administration” as the putative respondent in Form 86, when the Board should be so named.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by his maternal uncle Khan Asfar (“Asfar”) and Asfar’s sons who were supporters of Pakistan Peoples’ Party (“PPP”) and some PPP supporters as his own family were supporters of Pakistan Muslim League (“PML-N”) and had a dispute over land with Asfar. At the Board’s hearing on 19 January 2021, the applicant said that Asfar had died but he still feared harm at the hands of Asfar’s 5 sons.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 8 January 2026.

10.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

11.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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.  However, the applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 16 March 2021. He merely stated in the affirmation that the decision was very unreasonable.

Discussion

14.  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”.

15.  Thus, the applicant could not establish any valid ground to challenge the Board’s Decision by merely asserting that it was very unreasonable without specifying how or why it was so.

16.  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).

17.  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.

18.  In assessing the appeal by the applicant, the Board held an oral hearing on 19 January 2021 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board found the applicant’s account was utterly devoid of any credibility. Due to the numerous inconsistencies and contradictions of the applicant’s written and oral evidence, the Board was satisfied that the applicant was an untruthful witness and he had told lies about matters that went to the root of his claim. As a result, the Board did not accept the applicant’s evidence of the matters that gave rise to his claims, including the alleged incident at the birthday party and his evidence of threats to himself and other members of his family.

20.  Thus, the Board concluded that the applicant had not shown that he himself could not reasonably and safely return to Pakistan and live there. He had not demonstrated that he was in danger of any harm warranting non-refoulement protection.

21.  The Board rejected the applicant’s evidence in its entirety and found the applicant’s non-refoulement claim failed on all the applicable grounds (except Torture Risk, which had been determined previously).

22.  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.

23.  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).

24.  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.

25.  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.

26.  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.

27.  For the sake of completeness, this court noticed that the adjudicator of the Board, Mr P. K. M. Longley, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.

28.  Mr Longley was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

29.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

30.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Longley was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.

31.  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

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

Dated the 28^th day of January 2026

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