Nasir Abdul v. Torture Claims Appeal Board

HCAL 1333/2021

[2026] HKCFI 1901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1333 OF 2021

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 the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 September 2021”.

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 September 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“Non Refoulment Protection Claims As been Rejected by immigration Department HKSAR”

2.The Torture Claims Appeal Board (“the Board”) made a decision dated 6 September 2021 (“the Board’s Decision”) regarding the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 1 June 2018 (“the Director’s Decision”).  As the applicant had annexed a copy of the Board’s Decision to his supporting affirmation dated 23 September 2021, it is clear that the applicant was referring to the Board’s Decision in Form 86.  The applicant also confirmed at the oral hearing before this court on 10 March 2026 that the Board’s Decision should be 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/2021/HCAL001333_2021_files/the_Board's_Decision.pdf

3.The Board found that the applicant’s application for non-refoulement protection in Hong Kong was not made out on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused the applicant’s petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same.

4.The applicant had previously made a torture claim and his claim was rejected by the Director and also the Board on appeal.  Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to consider this risk again in the Board’s Decision.

Amendments

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

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

7.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 September 2021”.

The applicant’s case

8.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.

9.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by a group of rich and influential people in his village due to a land dispute.  The people involved in the land dispute were three brothers named Zahid, Pervais and Shahid respectively (“the Three Brothers”).  The Three Brothers belonged to a group called Qabza Group (land grabbing group) and had links with members of the National Assembly belonging to the Pakistan Muslim League (N) (“the PML(N)”).

Oral hearing

10.The applicant requested for an oral hearing of the Leave Application and his case was heard on 10 March 2026.

11.When this court asked the applicant for the grounds of his intended judicial review, the applicant only said that the situation in Pakistan was still very bad and asked this court to give him some more time to stay in Hong Kong.  When his claim was placed before the Board, the adjudicator told him that he could go back to Pakistan because the Pakistan Tehreek-e-Insaf (“the PTI”) government was in power.  However, the applicant said that the situation got even worse for him after, but he did not have any proof.

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.The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 23 September 2021.

14.What the applicant said at the oral hearing cannot be a valid ground for the intended judicial review either.

Discussion

15.First of all, the applicant’s danger upon refoulement had been duly assessed by the Board.  The Board did mention in paragraph 58 of the Board’s Decision that the PTI had held power in Pakistan since 2018.  The applicant had claimed that his enemies had an association with the PML(N) but had provided very little detail.  The Board found that given the change in the political landscape in Pakistan, any such association might no longer be present or at least had diminished influence.

16.This was a finding of fact, which was within the exclusive ambit of the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

17.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).

18.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.

19.In assessing the petition by the applicant, the Board arranged an oral hearing on 9 June 2021.  The applicant was present and represented by a duty lawyer.  Thus, the applicant was given the opportunity to present his case through his lawyer to the Board.

20.As can be seen from paragraphs 45 to 47 of the Board’s Decision, the Board had serious doubts about whether the applicant owned any land in Pakistan. However, the Board accepted for the purpose of the assessment of the applicant’s petition that the land in question was transferred to him by his father and that the Three Brothers took the land by force in 2010.

21.The Board found that even if it was accepted that the applicant’s uncles were killed and the applicant was injured during the takeover of the land by the Three Brothers, there was in fact very little evidence of any sustained attacks upon the applicant in the ensuing period.  The Board found no evidence to corroborate the applicant’s statement that the mobile phone shop where he had worked at was set on fire in 2011 by the Three Brothers or that it had anything to do with the applicant.

22.Furthermore, all the incidents took place more than ten years ago and there was no evidence to suggest that any risk of harm at the hands of the Three Brothers still existed after years of no contact.  It appeared to the Board that the Three Brothers were only interested in obtaining the land and had not intended to kill or subject the applicant to serious harm.

23.The Board found that the nature of the applicant’s dispute with the Three Brothers was a purely private matter concerning ownership of land.  The applicant’s fear was not for any Convention reasons.  Moreover, the harm suffered by the applicant in the past did not attain the minimum level of severity required for international protection.

24.Given the steps taken by the Pakistani government to deal with land grabbing in Pakistan, the Board was of the view that it would be open to the applicant to approach the authorities to regain his land.  The Board was also satisfied that the applicant would be able to seek the assistance of police if he were to be threatened by the Three Brothers.  The applicant had not provided any evidence that the Three Brothers had any association with the current PTI government or any ongoing influence with the authorities including the police.

25.The Board was also satisfied that if for whatever reason, the applicant could not obtain assistance from the police or other authorities, the applicant could safely relocate elsewhere in Pakistan.  Despite the applicant’s assertion that he could not move elsewhere, the Board was of the view that, considering the applicant’s background and his abilities, he would be able to find work and make a living to sustain himself.  There was no evidence that the Three Brothers might exert their influence outside Attock, the applicant’s home area, and the risk of the applicant being located by them elsewhere in the country was low.

26.Thus, the Board concluded that the applicant did not face a real risk of any of the proscribed harms whether under BOR 2 Risk[2], BOR 3 Risk[3] or Persecution Risk[4] to entitle him to non-refoulement protection in Hong Kong.

27.The finding of facts, including the assessment of evidence, country of origin information 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.

28.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. 

29.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

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

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