Nazam Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 840/2021

[2026] HKCFI 3055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 840 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 7 June 2021 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 4 May 2021 (the “2021 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 8 March 2017 refusing his claim for non-refoulement protection under BOR 2 Risk[1] ground (the “Further Notice”),

2.The Applicant had requested an oral hearing.  On 19 December 2025, the Court was informed by the Director that the Applicant’s application for entry for residence as a dependent in Hong Kong was approved.  While the dependent visa may relieve him of his immediate concerns, it does not deal with his refoulement problem, if for any reason that issue should arise.  A hearing on 11 May 2026 was therefore scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86.  The Notice has not been returned through the post.  The Applicant had never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  On the afternoon of 8 May 2026, a court staff attempted to contact him by telephone to remind him of the hearing, but was informed that the telephone number was not registered for service.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that it had tried its best endeavour to bring the hearing to his notice.  He did not appear at the hearing.  Having also considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court is satisfied that the leave application may be justly determined on paper without an oral hearing.

3.The Applicant is a Pakistani national, now aged 44.  He sneaked into Hong Kong from Mainland China on 15 January 2007.  He was arrested by the police on 26 September 2007 and then he made a torture claim.  In gist, he claims, if returned to Pakistan, he will be killed by a man named Waseen who was a Nazim and administrator of 15 villages in his home area and a member of the Pakistan Muslim League-N for refusing to sell his family land; and by the Pakistani Police because he had shot a man on his rooftop.  His claim was assessed and refused under Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds by the Director’s Notice of Decision dated 14 January 2015 (the “Notice”).  His appeal against the Director’s decision in the 2015 Notice was dismissed by the Board’s Decision dated 30 September 2015 (the “2015 Decision”). 

4.By a letter dated 12 January 2017, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection, including BOR 2 Risk ground.   Having considered the additional facts submitted by his duty lawyer, the immigration officer, on behalf of the Director, issued the Further Notice refusing his claim under BOR 2 Risk ground.  His appeal against that Further Notice was dismissed by the Board’s 2021 Decision.  He now seeks leave to apply for judicial review of the Board’s 2021 Decision.

The Applicant’s case and the findings of the Board

5.The Applicant’s personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the findings of the Board and the reasons for its 2015 Decision are set out in detail in the decision.  In essence, the Board found the Applicant incredible and placed no credence in his account.  The hyperlink to the Board’s 2015 Decision is included below[5] for reference.

6.The Applicant was legally represented in his appeal before the Board.  He called no evidence but relied on his submissions.  His submissions consists of 18 paragraphs.  As was noted by the Board, eleven of those paragraphs were against the finding in the 2015 Notice.  The Board considered they are irrelevant.  As for the remaining seven paragraphs, they are related to four video clips and newspaper cutting submitted in relation to his BOR 2 Risk claim.  Having considered counsel’s submission and the video clips, the Board found the Applicant has not made out a case under BOR 2 Risk ground for the following reasons and dismissed his appeal:

(i)   All the four video clips and the newspaper cutting were neither related to the Applicant nor concerned with his case;

(ii)   The Applicant’s fear of harm by Waseen upon his return to Pakistan has been dealt with in the 2015 Notice;

(iii)   Apart from being hearsay, the video clips are lacking in particulars concerning the source of the information, identity of the people in the video and dates on which they were taken;

(iv)   The Applicant’s claim that he could be related or involved concerning the video clips is just his own imagination;

(v)   The finding in the 2015 Notice indicated that his case did not engage BOR 2 (ii) to (vi) in relation to death and genocide; and he had failed to establish a personal and real risk of being arbitrarily deprived of life in violation of BOR 2 (i) upon his return to Pakistan;

(vi)   In RM v Gerard Paul Muttrie [6], the court ruled that under USM, BOR 2 Risk and BOR 3 Risk are considered together and that a claimant who does not succeed on BOR 3 Risk has no arguable ground under BOR 2 Risk; BOR 3 has been considered in his claim under the 2015 Notice and had been dismissed.  Thus, there is no arguable ground under BOR 2 Risk; and

(vii)   In the Human Rights Committee, Article 691) of the International Covenant on Civil and Political Rights which is identical to Article 2(1) of the Hong Kong Bill of Rights, the test is whether there are substantial grounds for believing that there is a real risk of irreparable harm personal to the petitioner.  There is no such evidence.    

The hyperlink to the Board’s 2021 Decision is also included below[7] for reference.

Legal principles applicable to judicial review

7.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[8].

Grounds for judicial review

8.The Applicant submits that the Board was irrational and erred in finding that the four video clips were not related to him or concerned with him as the Board accepted that they featured the same perpetrator as the one persecuting him.  This submission is based on facts which are incorrect.  Nowhere in the 2021 Decision had the Board accepted that the perpetrators shown or named in the video clips had persecuted the Applicant.  It is important to note that the video clips do not show the conduct alleged of.  As the Board noted in paragraphs 8 to 14 of the 2021 Decision, it was all about what somebody mentioned in the video.  In the first video clip, it mentioned that a woman was attacked by five persons, including one called ‘Wadi’ whom the Applicant claimed had assaulted him.  In the second video clip, someone mentioned that one of Wassen’s companion shot someone who was brought to the hospital.  In the third video clip somebody mentioned three party members of Waseen threatened local people.  In the fourth video clip, someone mentioned that a 22 years old girl was killed by Wassen’s driver.  As was noted by the Board, all the video clips and newspaper cutting, apart from being hearsay lacked particulars concerning the source of the information, identity of people in the video and the dates in which the video clips were taken.  In the absence of these information, it was open to the Board to make that finding.  This finding is a findings of fact solely for the Board, which this Court in an application for judicial review may not intervene.

9.Second, the Applicant submits that the Board was unfair and erred in law in failing to consider his appeal afresh by holding that his fear had already been dealt with in its 2015 Decision.  The appeal is a rehearing of the Director’s 2021 Decision, not a rehearing of the Director’s 2015 Notice or the Board’s 2015 Decision.  The Board did conduct a rehearing. The Applicant chose not to call evidence but to rely on his submissions.  There is no new evidence tendered before the Board apart from those which were before the Director.  The Director’s 2015 Notice was superseded by the Board’s 2015 Decision.  In the 2015 Decision, the Board found the Applicant not credible and gave no credence to his account.  The Board’s finding in the 2015 Decision is final.  The Board is entitled to take its finding in the 2015 Decision into account.

10.Third, the Applicant submits that the Board erred in law in finding that “a claimant who does not succeed on BOR 3 Risk ground has no arguable grounds under BOR 2 Risk ground.”  The part in quote were the precise words used by the Board.  The Board drew support for that proposition from the decision in RM v Gerard Paul Muttrie [9] in which the court held at paragraph 52: 

“52. It was alleged that the right to life is protected under article 28 of the Basic Law and article 2 of the Hong Kong Bill of Rights, and RM’s right to life must be protected from extra-judicial killing such as she would face if she were deported to Indonesia ‘into the murderous reaches of [her] enemies’. But once it is found that RM has failed to establish personal risk or real chance of sufficiently serious harm at the hands of the debt collectors of the DC Company and/or the gangsters engaged by the Couple, or any harm she might face as a result of the consent or active / passive acquiescence of any public official or person acting or purporting to act in an official capacity, there is no arguable basis for such intended ground.”

11.The legal principle quoted by the learned judge is that once it is found that a claimant has failed to establish a personal risk or real chance of sufficiently serious harm at the hands of his perpetrator, or any harm he might face as a result of the consent or active / passive acquiescence of any public official or person acting or purporting to act in an official capacity, he would equally have failed to establish BOR 2 Risk ground.  The court did not laid down any principle that a claimant who does not succeed on BOR 3 Risk ground has no arguable grounds under BOR 2 Risk ground. 

12.BOR 2 Risk ground and BOR 3 Risk ground are different grounds founded on different basis and involving different requirements. There are two aspects in BOR 2 Risk ground.  Article 2(1) provides that no one shall be arbitrarily deprived of his life.  Articles 2(2) to (6) cover death sentences imposed by the state and genocide.  To prove BOR 2 Risk, a claimant has to prove either a death sentence has been passed on him or he has a real risk that such a sentence will be passed on him or his life would otherwise be at risk of violation and the state is incapable of providing him with reasonable protection against that risk.  BOR 3 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  To prove BOR 3 Risk, a claimant has to identify a form of torture, prove a risk that the harm will be inflicted on him by a state actor or a non-state actor and the state or government has failed to provide him with reasonable protection.   Torture or cruel, inhuman or degrading treatment or punishment may not necessarily result in death.  Likewise death may be painless, without torture or cruelty or degrading treatment or punishment.  The test of BOR 2 Risk and BOR 3 Risk may not be the same.  

13.Probably, the learned judge in RM realized the difference.  Certainly, she did not treat the two tests under the two grounds as one, which was what the Board appeared to have mis-interpreted.  She chose the middle course which would meet most situations under BOR 2 Risk and BOR 3 Risk grounds.  She chose requirements such as “chance of sufficiently serious harm”, at the hands of gangsters (ie non-state actors with “consent or active / passive acquiescence of any public official”) or person acting or purporting to act in an official capacity” (ie state actors).  The purported principle of law formulated by the Board is obviously an inept and erroneous paraphrasing of the principle in RM.  This ground appears to be an arguable ground of application.

14.Despite that, this Court does not consider this ground has any prospect of success, primarily because this arguably erroneous principle relied on by the Board is just an auxiliary basis of its Decision. The primary basis of the Board’s Decision are its finding in Point (ii) and Point (v) of its finding in paragraph 24 of its Decision.  Based on the 2015 Notice, which is now final, it found under Point (v) that BOR 2(ii) to (vi) Risk is not engaged simply because the Applicant has proffered no evidence that a death sentence has been passed on him or that he is at risk of having such a sentence being passed on him or that his life would be at risk of genocide, if returned to Pakistan.  It also found under Point (ii) that the Applicant’s fear of harm by Waseen upon his return to Pakistan has been dealt with in the 2015 Notice and rejected.  In the 2015 Notice, the Board found the Applicant not credible and it could place no credence in his account.  His account of risk of harm is not accepted, let alone one of violation of his life.  He has failed to prove the factual basis to support his claim of risk of violation of his life. BOR 2(i) Risk ground is also not engaged.  The findings in Point (ii) and Point (v) were reached independently of and without reliance on the arguable error of law committed by the Board. 

15.Further, under Points (i), (iii) and (iv), the Board found the video clips and newspaper cutting were not related to the Applicant or his case, they were lacking in particulars and the Applicant’s fear of harm from Waseen is his own imagination.  The findings under Points (i) and (iii) support the Board’s finding under Point (iv).  All these are findings of fact solely within the realm of the Board.  On the evidence, it is open to the Board to make those findings as it did.  It would even be irrational and an error of law, if the Board should find otherwise.

16.The Board’s findings under Points (i) to (v) were reached independently of and without reliance on its finding under Point (vi).  Even if the finding in Point (vi) is tainted with error of law, it would have no effect on the validity of the Decision.  Though the proposed ground of application is arguable, it has no prospect of success.     

Overall scrutiny

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that, except for the arguable error of law in the application of the principle in RM, the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board conducted a rehearing.  It found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under BOR 2 Risk ground.  This is a mixed findings of fact and of the law.  Insofar as they are findings of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational.  Except for the possible error of law discussed above, the Court could detect no other errors of law and no procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.For the above reasons, the Applicant’s leave application is refused.

Dated the 29^th 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