Tauseef Khan v. Torture Claims Appeal Board

HCAL 2129/2020

[2026] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2129 OF 2020

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”, 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 23 October 2020, 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 16 October 2020 (“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/2020/HCAL002129_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 January 2020, which rejected the applicant’s non-refoulement claim.

Amendments

3.The applicant named both the Board and “Non ReFoulment Claims Petition OFFice” as the putative respondents and did not name any putative interested party in Form 86.

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.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

6.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

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 if refouled to Pakistan, he would be at risk of harm or would be killed by Riaz and his family (“R’s Family”) as honour killing, as he had a romantic relationship with Fatima, Riaz’s sister.

Disposal on paper

9.The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

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 advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 23 October 2020. 

Discussion

12.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).

13.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the appeal by the applicant, the Board held an oral hearing on 15 July 2020.  The applicant was legally represented and was given the chance to present his case to the Board through his legal representative.  

15.As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.

16.The applicant had provided no objective proof of his assertions including the assault on him and the threats of R’s Family.  His other assertions, namely that R’s Family had accused him for kidnapping Fatima when they were in Karachi and threatened to kill him, as well as Fatima had been taken back to the home village and had disappeared, were only hearsay evidence.

17.The Board found that the applicant’s injury from the only assault was not serious and did not attain a minimum level of severity.  It was only the applicant’s speculation that the attackers were sent by Riaz.  The applicant’s claim that he was at risk of harm by R’s Family if refouled to Pakistan was also his own speculation only.  There was no indication that R’s Family were public officials or acting in any official capacity.  There was no evidence of state acquiescence in the ill-treatment of the applicant, or that he had been ill-treated with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or for any Convention reasons.

18.With regards to state protection, the Board noted that there were country of origin information (“COI”) which showed the insufficiency of the police in Pakistan.  However, there were also objective COI materials to show that the Pakistani government had taken proactive measures to improve police professionalism and accountability.  The Board found that reasonable state protection was available to the applicant.  In fact, it was only the applicant’s own volition not to report the assault to the police or other authorities in Pakistan.

19.Moreover, the Board found internal relocation to be a viable alternative to the applicant.  The applicant encountered nothing eventful when he was in Karachi and Islamabad before leaving Pakistan.  The Board considered that it would be highly unlikely for R’s Family to locate the applicant in such a vast country with a huge population, and it would not be unduly harsh for the applicant, being young with work experience, to live anywhere in Pakistan to avoid any perceived risks from R’s Family.

20.Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

21.The finding of facts including the assessment of evidence, COI and risk of harm 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.

22.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. 

23.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

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

Dated the 20^th day of March 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