Khan Imran v. Torture Claims Appeal Board

HCAL 373/2021

[2026] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 373 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;

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”, and “Director of Immigration” be added as the putative interested party.

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 17 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 29 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/HCAL000373_2021_files/the_Board's_Decision.pdf

2.The Board found that there was no merit in the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 June 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition.

Amendments

3.In Form 86, the applicant named both the Board and the Director as the putative respondents but did not name any putative interested party.

4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be ill-treated or killed by his creditor Raja Tanvir (“Raja”) and Raja’s people due to a loan dispute.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application. His case was heard on 6 January 2026.

9.At the hearing, this court asked the applicant to give his grounds for the intended judicial review. However, the applicant only confirmed that he had presented everything to the Director and the Board, and he requested to stay in Hong Kong to save his life.

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.The applicant did not state any grounds for his intended judicial review in his Form 86. However, he annexed a 9-page document to his supporting affirmation dated 17 March 2021 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, in which he stated nine grounds of judicial review.

12.In the said 9-page document, the applicant cited a number of benchmark cases on non-refoulement claims and asserted some general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those benchmark cases and the general grounds were applicable to his own case.

13.This court will deal with the aforesaid grounds as discussed below.

Discussion

14.In the said 9-page document, the applicant summarised his challenge in respect of the Board’s Decision by way of nine grounds of judicial review, which contained allegations under headings such as “Misdirection in the Law”, “Procedural Impropriety / Unfairness” and “Irrationality”. However, they only contained some general accusations against the Board without any particulars or any regard to his own situations.

15.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”. Thus, such general allegations cannot help the applicant at all.

16.The applicant also asserted that the Board failed to put weight on highly relevant country of origin information (“COI”) and relied on materials which were outdated or irrelevant. The applicant alleged that the Board failed to take into account “USHR 2010”, “USRF 2010” and “The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which would support a finding of consistent pattern of human rights abuses in Pakistan and there was a lack of state protection.

17.However, if there were any COI that the applicant wanted the Board to consider, he should bring the Board’s attention to those materials. 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.

18.Thus, it is groundless for the applicant to raise the allegation that the Board had failed to consider certain COI materials at this stage in a judicial review without first raising them to the Board.

19.Moreover, the applicant did not state which pieces of materials that the Board relied on were outdated or irrelevant. Contrary to the applicant’s assertion, this court finds that the Board had referred to COI materials which were fully-referenced and focused on the circumstances of the applicant in its assessment of the applicant’s claim that the authorities in Pakistan could not protect him.

20.The applicant challenged the Board for having failed to consider a consistent system of human rights violation in Pakistan. However, the applicant’s non-refoulement claim was based on his fear of harm from Raja due to a private loan only. It was never his case before the Board that his fear of return was due to a consistent system of human rights violation in Pakistan. Again, 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 (see Trinh Thuy Huyen v Torture Claims Appeal Board, supra).

21.Thus, the applicant’s allegation that the Board had failed to evaluate and make a finding of fact as to whether there was a consistent pattern of gross and mass violation of human rights violation in Pakistan is totally irrelevant.

22.Finally, the applicant’s complaint that the Board failed to call for psychological and psychiatric evaluations and reports cannot help him either. It is not a must for the Board to call for such reports when it was not raised by the applicant at the appeal stage and the Board did not find it necessary to do so in its assessment of the applicant’s appeal/petition.

23.Thus, none of the general accusations raised by the applicant could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

24.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).

25.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.

26.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 October 2020 so as to enable the applicant to supplement whatever facts or evidence he felt he had omitted to disclose in respect of his claim and also to enable the Board to clarify the matters stated in his case.

27.Although the applicant was present and was given the chance to present his case to the Board in person, he told the Board that he would only rely on all the documents available in the hearing bundle and refused to answer questions as he had forgotten about it. Hence, the Board could only assess his case on what was stated in the hearing bundle.

28.As can be seen in the Board’s Decision, the Board had gone through all the documents and found that the applicant had not made out a case for non-refoulement protection.

29.On the applicant’s written evidence, his fear of returning to his home country arose only from the threat by Raja due to his inability to repay a loan, which was private in nature. The applicant stated that he had only “a minor fighting” when Raja asked him to return the loan. Raja was only a contractor of a bus terminus in Gujar Khan City and was not a government official. No policemen or government officials had ever been involved in his money dispute with Raja. His fear of ill-treatment by Raja did not fall within the definition of persecution and the ill-treatment inflicted on him was not on account of any of the Convention reasons.

30.Further, as mentioned, the Board had gone through relevant and fully-referenced COI and found that, contrary to the applicant’s assertion that the authorities in Pakistan could not protect him, state protection was available to him upon his return if he needed it.

31.The Board also found, based on the applicant’s own evidence, that he had stayed elsewhere in Pakistan for about half a year without being harmed. The influence of Raja, if any, was limited within his own village. It would be very difficult, if not impossible, for Raja to locate him should he relocate to other parts of the country. The Board found the applicant, being a mature, able-bodied male with 7 years of education and 18 years of work experience, could relocate to other parts of Pakistan without undue hardship in order to avoid Raja.

32.The assessment of evidence, COI 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.

33.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.

34.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

35.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