Sohail Khan v. Torture Claims Appeal Board

HCAL 1328/2020

[2026] HKCFI 1934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1328 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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 28 May 2020”.

2.   Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 28 May 2020.

3.   The applicant is directed to issue an originating summons for the intended judicial review on or before 15 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The leave Application

1.By way of Form 86 dated and filed on 26 June 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 28 May 2020 (“the Board’s Decision”).  However, the applicant also put down 26 June 2020 as another date of decision in Form 86.  Upon clarification with the applicant at the oral hearing before this court on 10 March 2026, the said date of 26 June 2026 was only the date on which the Leave Application was filed.  The applicant confirmed that only the Board’s Decision was the subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001328_2020_files/the_Board's_Decision.pdf

2.The Board found nothing in the evidence to show that the applicant would be at risk of BOR 2[1] harm if refouled to Pakistan.  Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 26 April 2017 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim on BOR 2 Risk[2] under the Unified Screening Mechanism (“the USM”). 

3.The applicant’s appeal/petition against the Director’s previous decision dated 30 November 2015, which rejected the applicant’s non-refoulement claim on the other available grounds under the USM, namely Torture Risk[3], BOR 3 Risk[4] and Persecution Risk[5] was rejected by the Board by way of its decision dated 11 March 2016.

4.Thus, the applicant’s non-refoulement claim on Torture Risk, BOR 3 Risk and Persecution Risk under the USM had been finally disposed of, and it was not necessary for the Board to re-assess them in the Board’s Decision.

Amendments

5.In Form 86, the applicant named “Torture Claim Appeal board Non-Refoulment Claim Petition office” as the putative respondent and did not name any putative interested party.

6.In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

7.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. 

8.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

9.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 28 May 2020”.

The applicant’s case

10.In sum, the applicant’s case before the Director, whether when it was determined on his Torture Risk, BOR 3 Risk and Persecution Risk under the USM or subsequently under BOR 2 Risk, was that if he were refouled to Pakistan, he would be harmed or killed by his father due to a family dispute.

11.As noted by the Board, the applicant introduced a new issue, namely “these days in Pakistan are so strict about religion they can kill someone in blasphemay [sic]” in his Notice of Appeal to the Board.

Oral hearing

12.The applicant requested for an oral hearing and his case was heard on 10 March 2026.

13.When this court asked the applicant for the grounds of his intended judicial review, the applicant said that when his case was presented to the Board, he was detained in detention centre and did not have the means to get information to support his risk due to religion, which was actually one of the bases of his non-refoulement claim.  However, the Board merely considered this risk as a passing remark.

Grounds for judicial review

14.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).

15.In Form 86, the applicant did not identify any grounds for the intended judicial review, but stated that he might need more time to collect more facts and reasons which might help him in his case against the Board’s Decision.

16.In his supporting affirmation dated 26 June 2020, the applicant stated that the risk of his life was still extremely high upon return to his country.  He denied the facts on which his BOR 2 was rejected, as religion was extremely important in Pakistan and law enforcements were not strong enough to save most of the people as corruption was open there.

17.As aforesaid, the applicant said at the oral hearing before this court that the Board had considered his risk based on religion as just a passing remark.

Discussion

18.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).

19.Thus, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

20.The Board considered that it was not necessary to hold an oral hearing for the applicant’s petition against the Director’s Decision regarding his BOR 2 Risk, as there was nothing which warranted an oral hearing.  The Board was of the view that the applicant had been afforded an opportunity by the Director to adduce additional facts in relation to his BOR 2 claim, but had not done so within the period given by the Director.

21.However, the Board did note that the applicant had raised a new issue in his Notice of Appeal as aforesaid.  The applicant also wrote “Please give me one chance to collect information and data related to my case so that I can prove that my case is genuine” in a document attached to the Notice of Appeal.

22.The Board considered that religious persecution was never a part of the applicant’s case that he had previously put forward.  As submitted by the applicant, the Board indeed considered the applicant’s reference to religion in his Notice of Appeal to be simply a passing remark (see paragraph 9 of the Board’s Decision).

23.It is trite that although referred to as an appeal or a petition, the nature of the Board’s consideration of the applicant’s case is a “rehearing” of the matter and not an appeal (see AM v Director of Immigration and William Lam, Adjudicator, HCAL 102/2012,at §28 – 30).  Thus, on an appeal to the Board, all questions of fact and law are at large, and the hearing before the Board is a hearing de novo.  The Board must come to its own conclusion on all issues of credibility, facts and law and must come to its own conclusion on the relevant country of origin information.

24.It was therefore necessary for the Board to assess the applicant’s new claim of risk due to religion thoroughly instead of simply considering it as a passing remark.

25.Although the Board was not obliged to hold an oral hearing in assessing the applicant’s petition, it seems that an oral hearing might be warranted when the applicant raised a completely new issue.  The new issue raised by the applicant regarding his risk due to religion, in this court’s view, should be considered as “matters that should have been probed and clarified at an oral hearing, rather than left to the drawing of inference based on common sense and assumptions” (see ST v Betty Kwan and Another [2014] 4 HKLRD 277 at §70).

26.By assessing the applicant’s case, including the new issue raised, without a hearing, and also by dismissing the new issue as simply a passing remark without probing further as to the genuineness and severity of the newly claimed risk, the Board might have committed an error of law and could be procedurally unfair to the applicant.

27.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that there could be an error of law in respect of the assessment of the applicant’s petition and/or procedural unfairness to the applicant in the Board’s Decision.

28.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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.

29.As it is this court’s view that there could be an error of law and/or procedural unfairness in the Board’s Decision, the intended judicial review is reasonably arguable.  Leave should therefore be granted to the applicant to apply for judicial review in respect of the Board’s Decision.

Conclusion

30.For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

31.The applicant is directed to issue an originating summons for the intended judicial review on or before 15 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 1^st day of April 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