Muhammad Ali Hassan Alias Ahsan Junaid v. Torture Claims Appeal Board
Read the full judgment text of HCAL 347/2022 on BabelCite. This High Court CFI judgment was delivered on 13 May 2026.
1. By way of Form 86 dated and filed on 16 May 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
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HCAL 347/2022 [2026] HKCFI 2670 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 347 OF 2022
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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 16 May 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
2.The applicant attached a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 April 2022 (“the Board’s Decision”) to his supporting affirmation dated 16 May 2022. The Board’s Decision was dealing with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 June 2018 (“the Director’s Decision”). It is clear that the date of the decision which the applicant put in Form 86 was the date of the Director’s Decision. 3.As the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), this court will treat the Board’s Decision as the subject matter of the Leave Application. 4.The applicant had previously made a torture claim in 2010. His torture claim was rejected by the Director on 14 December 2010, and on appeal, by the Board on 24 January 2011. 5.The applicant was subsequently removed to his home country Pakistan on 15 February 2011. 6.However, the applicant entered Hong Kong again on 15 August 2013 and filed a non-refoulement claim by way of written significations dated 7 September 2013 and 4 April 2018 respectively. 7.Despite that fact that the applicant’s torture claim had been finally disposed of, the applicant’s non-refoulement claim was assessed both by the Director and on appeal by the Board on all the applicable grounds including Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] under the Unified Screening Mechanism (“the USM”), as the Director had decided by his letter dated 4 April 2018 that the applicant could make a subsequent claim. 8.The Board’s Decision, which is the subject matter of the Leave Application, can be viewed in the following hyperlink:- 9.The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the said applicable grounds under the USM. In addition, the Board found that there was state protection available and internal relocation remained a viable option to the applicant. Accordingly, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 10.The applicant named the Board / Non-refoulement Claims Petition Office as both the putative respondents and the putative interested parties in Form 86. 11.In fact, only the Board should be the putative respondent and the Director should be the putative interested party. 12.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 party at all. 13.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision and hence it should be so amended. 14.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 11 April 2022”. The applicant’s case 15.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. 16.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, his life would be in danger as he would be harmed or killed by his uncle Ajab Khan by making use of his network with the Shia Muslims. His uncle bore grudges with him due to the dispute of ownership of his house, which was transferred to the applicant by the applicant’s grandfather. The uncle assaulted the applicant and threatened to kill him when the applicant refused to accede to his uncle’s request to transfer the house to him. Disposal on paper 17.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 18.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). 19.The applicant did not advance any ground for his intended judicial review in Form 86. 20.In his supporting affirmation dated 16 May 2022, the applicant listed 14 grounds which were all very general and 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 general grounds were applicable to his own case. He also added that his life would be at risk or he would receive death in his home country. 21.The applicant also annexed an 11-page document to his supporting affirmation with the title “THE GROUND FOR THE APPLOCTION ARE AS FOLLOWS:”. 22.In the said 11-page document, the applicant cited a number of benchmark cases on non-refoulement claims, listed an extract of the Hong Kong Bill of Rights, included an extract of an article which appeared to be written by some human rights organization to the Director of Immigration, inserted some internet links such as the websites of the UK Border & Immigration Agency Protocols and the New Zealand Refugee Status Appeal Authority, etc, and two YouTube links. 23.At the end of the said document, the applicant seemed to be complaining that the Immigration Officer disrespected and discriminated him. 24.This court will deal with the aforesaid grounds as discussed below. Discussion 25.First of all, all the 14 grounds that were listed in the applicant’s supporting affirmation were very general. They merely contained allegations under headings such as “Irrationality”, “Procedural impropriety / unfairness”, “Insufficient inquiry”, “Failure to provide adequate reasons”, “Failure to consider the concept of state acquiescence or the extended form of state acquiescence, “Failure to consider the COI[5] reports”, “Irregularity of the decision-maker being a different person than the interviewing officer”, and “No proper basis for consideration of internal relocation”, etc. However, all of them are just general accusations against the Board without any particulars or any regard to his own situations. 26.Significantly, in ground (3) contained therein, the applicant stated the ground as “Failure to investigate into the country of origin information of India”, when the applicant is a Pakistani himself and his case has nothing to do with India whatsoever. This shows clearly that the applicant was just copying the grounds from somewhere without any regard to his own situations. 27.As to the applicant’s complaint that the Board had failed to consider the concept of state acquiescence and the extended concept of the same, the Board had in fact made findings specifically on whether the applicant’s uncle was acting with the consent or acquiescence of a public official or other person acting in an official capacity (see paragraph 64 of the Board’s Decision). The Board also noted the applicant’s claim that his uncle was a superintendent in the army, but found no evidence that the uncle was acting in an official capacity in the private property dispute with the applicant. 28.Moreover, the applicant’s complaints that the Board had failed to put weight on relevant information or matters, and/or had selectively placed weight on irrelevant information, matters and/or inaccurate or incorrect factors, were asserted without any specificity. 29.The applicant did not state which pieces of materials that the Board relied on were irrelevant or incorrect, or which pieces of relevant information or material the Board ought to have put weight on. Contrary to the applicant’s assertion, this court finds that the Board had clearly referred to COI materials which were generally update, fully-referenced and focused on the circumstances of the applicant in its assessment of the applicant’s claim that bribery was needed to obtain police protection in Pakistan, and hence the police could not protect him. 30.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 his uncle due to a property dispute, and the applicant’s allegation that his uncle could make use of his network with the Shia Muslims to harm him 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. 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 [2024] HKCA 1090). 31.Thus, the applicant’s allegation that the Board had failed to consider a consistent system of human rights violation in Pakistan is totally irrelevant. 32.The applicant also accused the Board for failing to call for psychological and/or psychiatric reports and/or evaluations. This complaint 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. 33.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, the applicant’s general allegations cannot help him at all. 34.As to the applicant’s allegation at the end of his supporting affirmation that his life would be at risk if he returned to his home country, his danger in his country had already been assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 35.This court now turns to deal with the applicant’s assertions as contained in the 11-page document with the title “THE GROUND FOR THE APPLOCTION ARE AS FOLLOWS:” that was annexed to his supporting affirmation. 36.As aforesaid, the applicant cited a number of benchmark cases on non-refoulement claims, listed an extract of the Hong Kong Bill of Rights, included an extract of an article which appeared to be written by some human rights organization to the Director of Immigration, and inserted some internet links and two YouTube links in the said document. 37.However, the applicant did not give any particulars as to how those benchmark cases, the Hong Kong Bill of Rights, the websites, YouTube links and the extract of an article which appeared to be written by some human rights organization to the Director of Immigration were related to his own case, or could otherwise be used as grounds for his intended judicial review. 38.At the end of the document, the applicant also seemed to complain that the Immigration Officer disrespected and discriminated him. 39.His alleged disrespect and discrimination by the Immigration Officer contained no details and was in fact irrelevant to the Leave Application, as the Leave Application only concerns the Board’s Decision and not the Director’s Decision. 40.Thus, none of the matters raised in the applicant’s affirmation dated 16 May 2022 or the 11-page document constitutes any valid ground for challenging the Board’s Decision. 41.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). 42.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 for any errors of law, procedural unfairness, or irrationality as aforesaid. 43.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 June 2020. The applicant was thus given the chance to present his case to the Board in person. However, the applicant elected not to give oral evidence at the Board’s hearing. Hence, his case was assessed based on all the written materials before the Board. 44.As can be seen from the Board’s Decision, and contrary to the applicant’s assertion that the Board had failed to provide adequate reasons for its decision, the Board did give full and detailed reasoning in finding that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 45.The Board found from the evidence that regardless of the applicant’s grandfather’s intention to transfer the ownership of the family house to the applicant in 2010, the house in dispute remained registered under the name of the applicant’s grandfather. The uncle had never approached the applicant’s grandfather and demanded to own the house where the grandfather was living with the applicant’s family. The applicant’s allegation of property dispute between him and his uncle was just a fanciful assertion. The Board did not accept that the applicant was assaulted and threatened as alleged. 46.The Board noted that the applicant claimed to have been assaulted thrice in 2010 and once in 2012. However, the injury he sustained in the first and second assaults in 2010 was not serious. The applicant did not sustain any injury in the third assault in 2010 and the assault in 2012. The Board did not consider the pain or suffering inflicted upon the applicant was so severe as to amount to torture or reach a minimum level of severity required for international protection. 47.With regards to the applicant’s assault by Shia Muslims, the Board found no evidence at all that the applicant’s uncle was involved in the incident. It was the applicant’s own evidence that he (as a Sunni Muslim) and Qari Saeed, whom the applicant stayed with when the applicant moved to Madrasa Institution in Talagang, argued with the Shia Muslims when they spoke foul language against a Sunni Muslim prophet. 48.The applicant mentioned an incident that Qari Saeed was shot dead by Shia Muslims in January 2013 while he was in the same car with Qari Saeed. The Board found it clear that Qari Saeed was the target of the Shia Muslims. The incident had nothing to do with the applicant. 49.The Board found the applicant’s claim that he kept moving to different places to avoid being harmed by his uncle was his mere assertion. The applicant did not meet his uncle in any of those places. The applicant also claimed that he was afraid that his uncle would make use of his network with the Shia Muslims to endanger his life. The Board found that this claim was again the applicant’s bare assertion and there was no evidence at all to support this allegation. 50.The Board found that the applicant’s fear, if any, arose from a private property dispute with his uncle only. His fear was therefore not for a Convention reason. 51.As aforesaid, the Board had examined fully-referenced COI and addressed the applicant’s concern that the police in Pakistan would not protect him. The Board found that although corruption was a problem in the country, the Pakistani government had tried hard to improve the situation and there was a decrease in police corruption. There was no evidence to indicate that the applicant’s uncle might think that he could act with impunity. The Board found that state protection was ready and available to the applicant upon his return to Pakistan. 52.Moreover, the Board found no evidence that the applicant’s uncle was powerful enough to make use of his network with Shia Muslims to search for the applicant all over the country. The Board was of the view that the applicant, being able-bodied with 11 years of education and 2 years of work experience as a self-employed rickshaw driver, could reasonably relocate without undue hardship to other parts of Pakistan to avoid the threat from his uncle, if the threat existed at all. 53.Thus, the Board found that the applicant was not at a real risk of being tortured, ill-treated, persecuted or arbitrarily deprived of his life upon refoulement, and the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 54.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 55.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. 56.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 57.For reasons aforesaid, the Leave Application is dismissed. Dated the 13th day of May 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 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. [5] COI is usually used to refer to country of origin information. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment