Sana Ullah v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1596/2021 on BabelCite. This High Court CFI judgment was delivered on 10 June 2026.
1. By way of Form 86 dated and filed on 2 3 November 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 11 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 3 cases
|
HCAL 1596/2021 [2026] HKCFI 3415 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1596 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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 23 November 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 11 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 June 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.The applicant named the Board as the putative respondent in Form 86, but spelt the Board’s name wrong. The applicant also named the Director as the putative interested party but spelt his name wrong. 4.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 5.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. 6.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed by the Pakistan Tehreek-e-Insaf (“PTI”) due to his support for the Pakistan Muslim League (Nawaz) (“PMLN”) and his work for his father, who was a counselor of PMLN. Oral hearing 7.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 4 June 2026. 8.When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he belonged to PMLN and was in fear of PTI, his life was in danger as they had been fighting, and he came to Hong Kong because his friend told him that it was very safe in Hong Kong and he could have a good time here. Grounds for judicial review 9.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). 10.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 23 November 2021. 11.What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either. Discussion 12.First of all, the applicant’s fear of PTI had been duly 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. 13.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). 14.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 15.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 20 October 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person. 16.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection. 17.The Board had laid out in paragraphs 27 to 29 of the Board’s Decision its findings on the credibility of the applicant and his case, and it is not necessary for this court to repeat the same here. 18.In gist, the Board found many parts of the applicant’s account as set out in his Non-refoulement Claim Form to be exaggerating, inconsistent with accounts he gave in other settings, and some even defied logic. The Board found his claim totally unconvincing. The Board was not satisfied that the applicant had established his account as to his alleged enmity with his enemies. Further, the Board was not convinced about his past experience of harm. The entirety of the applicant’s account that led to his claim for non-refoulement protection was rejected. The Board found that the risk of the applicant being subjected to torture, ill-treatment, arbitrary deprivation of life and persecution was low. 19.The Board had gone through extensive country of origin information (“COI”) and found that there had been improvements in police professionalism in Pakistan. The Board believed that there was adequate protection to protect the applicant from any risk he might have over being harmed by the alleged enemies. It also appeared to the Board that the applicant had avenues to seek redress if he was aggrieved by the treatment he might receive from the Pakistani police. 20.Further, although the Board did not find it necessary for the applicant to relocate, the Board had explicitly stated that it would not be unduly harsh to expect the applicant to relocate to, say, Lahore, should he find it uncomfortable to stay at home. 21.Thus, the Board concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM. 22.The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decisions. The applicant’s alleged risks in his country had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decisions. 23.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. 24.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 25.For reasons aforesaid, the Leave Application is dismissed. Dated the 10th day of June 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 | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment