Sageer Hussain Alias Sagheer Hussain v. Torture Claims Appeal Board

HCAL 364/2021

[2026] HKCFI 2095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 364 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 the name of the putative interested party be amended to “Director of Immigration”.

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 12 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/HCAL000364_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 July 2017 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

History of the applicant’s claims for non-refoulement protection in Hong Kong

3.The applicant made a torture claim on 6 November 2007 and withdrew his torture claim on 26 September 2012. He subsequently requested to re-open his torture claim on 10 December 2012.

4.The Director rejected his torture claim on 14 June 2013 (“the Director’s 2013 Decision”). The Board rejected the applicant’s appeal against the Director’s 2013 Decision on 21 February 2014.

5.By his letter of 23 October 2013, the applicant reserved his rights to claim protection in Hong Kong against cruel, inhuman or degrading treatment or punishment (“CIDTP”). However, he withdrew his non-refoulement claim on 9 July 2015 and was deported to Pakistan on 10 August 2015.

6.The applicant subsequently claimed that he departed Pakistan again on 3 March 2016 and snuck into Hong Kong from Shenzhen, China on 19 April 2016.

7.The applicant lodged a non-refoulement claim on 1 June 2016 and claimed that after he went back to Pakistan on 10 August 2015, a new political dispute started and the PML(N)[1] people wanted to kill him.

8.The Director considered that there had been a significant change of circumstances since the previous torture claim was rejected and decided that the applicant may make a subsequent claim on all the applicable grounds including Persecution Risk[2], BOR 3 Risk[3], BOR 2 Risk[4] and Torture Risk[5] under the USM.

9.The applicant’s subsequent claim was rejected by the Director by way of the Director’s Decision. The applicant’s appeal/petition against the Director’s Decision was rejected by the Board by way of the Board’s Decision, which is the subject matter of the Leave Application.

Amendments

10.In Form 86, the applicant named the Board and the Director as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

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

The applicant’s case

12.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.

13.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk from the family of Hamid, the applicant’s neighbour who was shot to death by the applicant’s cousin Tahir Waseem (“Waseem”) using the applicant’s pistol. The applicant claimed that Waseem had been sentenced to death but had not been executed, as Waseem was a witness who could testify that the pistol belonged to the applicant. The applicant believed that Waseem and he would both be subjected to death penalty if he was returned to Pakistan.

14.As aforesaid, the applicant raised a new issue in his subsequent claim that the PML(N) people wanted to kill him. He alleged that Hamid’s family’s links with the PML(N) would give rise to a further risk of harm from members or supporters of the PML(N).

Oral hearing

15.The applicant requested for an oral hearing and a hearing was arranged on 15 January 2026. However, he was absent at the hearing. Upon his request for another hearing with the explanation that he had gone to the wrong location for hearing on 15 January 2026, another hearing was arranged on 12 March 2026.

16.At the resumed hearing, when this court asked the applicant whether he wanted to rely on the written submissions annexed to his supporting affirmation dated 17 March 2021 as the grounds for his intended judicial review, the applicant first replied that he wanted to submit to this court some documents and photographs related to events happened in 2022 after the Board’s Decision.

17.This court then explained to him that it was not for this court to re-assess his non-refoulement claim, but he had to tell this court what were wrong with the Board’s Decision. The applicant then said that he disagreed with the Board’s Decision. However, he could not remember what were written in the said written submissions as they were written by his friend for him.

18.After the court interpreter had explained the contents of the said written submissions to him, the applicant confirmed that he wanted to rely on them as his grounds for the intended judicial review. He added that his life was in danger and he could not go back to Pakistan. He asked this court to reconsider his case as he lived a hard life here in Hong Kong. He could not work and could not get married. When he came, he was 22 years old, but now he is 44 years old.

19.When this court asked the applicant why he had attached some documents to his supporting affirmation, he replied that the documents were to show that he had nothing to do in Pakistan, his brother had disowned him and passed away, and he had nowhere to go in Pakistan because his house had been sealed. He even mentioned at the end of the hearing that he would accept this court’s decision but he would end his life.

Grounds for judicial review

20.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).

21.The applicant did not advance any grounds for his intended judicial review in Form 86. In the said written submissions, the applicant merely repeated the basic facts of his claims, including the threat from the PML(N) and Hamid’s family, and that he had been disowned by his family. He also mentioned the Covid-19 pandemic situation in Pakistan and it was dangerous for him to return.

22.As aforesaid, the applicant confirmed at the oral hearing that he would rely on what was stated in his written submission as his grounds for judicial review, but this court was not prepared to accept the new evidence the applicant proposed to submit. It is clear what the applicant submitted orally at the hearing could not amount to any valid ground for his intended judicial review.

Discussion

23.First of all, the contents of the said written submissions were merely a reiteration of the applicant’s bases for his non-refoulement claim. However, his claims (except the Covid-19 pandemic situation) had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

24.The applicant’s fear of the Covid-19 pandemic situation in Pakistan and his allegation made at the oral hearing that his home was sealed were not presented to the Board for assessment. 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.

25.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

26.Thus, the applicant cannot rely on matters not raised before the Board as a ground for his intended judicial review. This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim.

27.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, supra).

28.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

29.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 November 2020. The applicant was present and was represented by Mr John H.C. Chan, duty lawyer assigned by the Duty Lawyer Service. Thus, the applicant was given the chance to present his case to the Board through his legal representative.

30.As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board had also considered the documents with the title “Affidavit Disown Ship” and “Statement by the Appellant”, which were submitted by the applicant to the Board after the Board’s hearing, in support of his claim that he had been disowned by his family and to explain for the inconsistencies in his claims and evidence.

31.The Board had addressed the applicant’s submission that the Board, as previously constituted when it considered the applicant’s appeal against the Director’s previous decision regarding his torture claim, did not reject his claims on the basis of credibility findings. However, the Board considered, and this court agrees that, although the Board was able to take earlier decision by the Board into account, the Board was not bound by it. It was for the Board to consider all the evidence de novo and to make relevant findings, including relevant findings in relation to credibility, in the assessment of the applicant’s appeal/petition before it.

32.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.

33.With regards to the applicant’s claimed risks arising from the alleged murder of Hamid by Waseem, the Board accepted that: (1) Hamid’s existence and his behavior and conduct as described by the applicant; (2) there were a series of attacks and fights, including one where the applicant was hit on the nose by a pipe-wielding Hamid; (3) Hamid’s agitated and persistent conduct, and such things as his complaining to Waseem’s family, were likely to have irritated Waseem, if not enraged him; and (4) the applicant owned a pistol as claimed at the relevant time.

34.However, the Board stated explicitly that based on all the evidence before it, it was not satisfied that the applicant’s claims beyond the accepted matters were credible due to many significant inconsistencies in the applicant’s evidence. The Board concluded that the applicant was not a witness of truth and his claims were not credible. The Board also found that the death certificate of the applicant’s mother did not suggest that the cause of death was related to the applicant’s claims, or to anything else that was relevant to the claims.

35.Specifically, the Board gave full and detailed reasoning in paragraph 121 (a) to (o) as to why all the matters giving rise to the applicant’s claims were rejected.

36.In gist, the Board rejected that: (1) the pistol lending incidents occurred at all; (2) the claimed shooting of Hamid by Waseem had actually occurred; (3) the applicant, or Waseem, fled their village to Lahore as claimed, or that Waseem subsequently returned and was arrested as claimed; (4) a First Information Report (“FIR”) had been issued and listed the applicant’s name, and the applicant’s family would be arrested if they requested the FIR; (5) the applicant was wanted for having lent the pistol, or for conspiracy of murder, or as the ‘mastermind” to a murder; (6) the applicant had been charged with such offences, despite not having been issued with any summonses or other relevant prosecution documents; (7) Waseem had been prosecuted or found guilty of murder or that he had been sentenced to death pending the applicant’s return to Pakistan; (8) the police turned up seeking to arrest the applicant soon after his return to his home, or at any other time while he was in Pakistan from August 2015 to March 2016 prior to his departure from Pakistan to Hong Kong; (9) the applicant had to flee out the back door, or in any other way, to avoid the police; (10) the applicant bribed an officer or the coolies at the airport in order to enter Pakistan when he returned; and (11) as a wanted person, the applicant was able to evade relevant screening at the airport as claimed, when he departed Pakistan.

37.Thus, the Board found no substantial grounds for believing that as a result of his being returned to Pakistan then or in the reasonably foreseeable future, the applicant would face a real risk of any of the proscribed forms of harm for any of the reasons claimed, or for any other reason.

38.In relation to the further limb in his claims that was introduced by the applicant when he requested for his non-refoulement claim to be reinstated after having withdrawn it, namely that the PML(N) people wanted to kill him, the Board had also analyzed the evidence in details and presented its full reasoning in not accepting that the applicant faced any harm at the hands of Hamid’s family, whom the applicant alleged to have links with the PML(N), or at the hands of the PML(N) or anyone else, for the reasons claimed.

39.Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm if he were refouled to Pakistan.

40.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board had found that the applicant was not at risk of harm at the hands of Hamid’s family, or at the hands of the PML(N) or anyone else, and was not a person of any adverse interest to the Pakistani police or to other authorities, it was not necessary for the Board to consider availability of state protection.

41.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).

42.As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

43.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.

44.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.

45.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

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

Dated the 15^th 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