Shahzad Umar v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1031/2021 on BabelCite. This High Court CFI judgment was delivered on 24 June 2026.
1. By way of Form 86 dated and filed on 21 July 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 15 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
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HCAL 1031/2021 [2026] HKCFI 3605 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1031 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 21 July 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 15 July 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 (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 17 December 2018, which rejected the applicant’s non-refoulement claim on the grounds of BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. 3.The applicant had previously made a torture claim and his claim was rejected by the Director on 4 June 2012. The Director’s decision was upheld by the Board on appeal on 15 October 2012. 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 4.In Form 86, the applicant named the Board and the Director as the first and second putative respondents respectively, and the Board as the putative interested party, but spelt the Board’s name wrong. 5.The applicant confirmed at the oral hearing before this court on 11 June 2026 that the Board’s Decision was the only subject matter of the Leave Application. Thus, only the Board should be the putative respondent and the Director should be the putative interested party. 6.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 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he faced a real risk of serious harm or death due to a dispute with his neighbours. He originally claimed that the dispute was over land, and later claimed that the dispute arose because his family members were Shia and their neighbours were Sunni Muslims. When he was interviewed by the Immigration Department, he said that the land dispute had been resolved in court in 2003-2004, and that his family had lived peacefully beside the neighbours after that until the religious dispute arose. He said at the Board’s hearing that this was correct, although he also said that he could no longer remember what he said in his previous claims. He said at the Board’s hearing that the boys from his school were responsible for the religious dispute, because they told his neighbours that they should not live next to Shia Muslims. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application. His case was heard on 11 June 2026. 10.At the hearing, the applicant submitted a handwritten letter stating his grounds for the intended judicial review. When this court asked the applicant to elaborate on the grounds stated therein, the applicant merely replied that he was tortured, his life was in danger and he could not go back to his country. Grounds for judicial review 11.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). 12.The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 July 2021. In the said affirmation, the applicant only mentioned that he was seeking to judicially review both the Director’s Decision and the Board’s Decision. 13.However, as said, the applicant confirmed at the oral hearing that the Board’s Decision was the only subject matter of the Leave Application. 14.In the applicant’s letter, which was submitted at the oral hearing, he mentioned several matters, which are summarised as follows:-
15.As aforesaid, the applicant did not elaborate on the above-mentioned grounds at the oral hearing. He only said that he was tortured, his life was in danger and he could not go back to his country. Discussion 16.Grounds (1) and (4) as summarised above are only general accusations. The applicant did not specify nor elaborate which parts of his statement or evidence were not considered, or how the Board had dealt with his case unfairly. 17.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 complaints cannot assist him at all. 18.In Grounds (2) and (5), the applicant reiterated his danger in his home country and that relocation was not safe for him. However, his claims for non-refoulement protection 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. In fact, the Board did not make any finding on the viability of internal relocation for the applicant since the applicant’s claims regarding his dispute with his neighbours were rejected in their entirety. 19.In Ground (3), the applicant mentioned that as an uneducated person, he could only explain according to his knowledge. Nevertheless, it is the applicant’s duty to substantiate his claim for non-refoulement protection. The applicant was in fact assisted by the Duty Lawyer Service when his case was assessed by the Director. There was no reason at all that he would not be able to explain his case fully to the Director through the Duty Lawyer Service. All such information would also be available to the Board for its consideration. Thus, this ground is not arguable. 20.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). 21.Thus, the applicant cannot ask this court to re-assess his non-refoulement claim as requested in Ground (6). 22.In other words, all the grounds advanced by the applicant in the said letter are not valid grounds for the intended judicial review. 23.However, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid, despite the fact that the applicant did not advance any valid ground for the intended judicial review. 24.In assessing the petition by the applicant, the Board held an oral hearing on 7 June 2021. The applicant was present and was given the chance to present his case to the Board in person. 25.As can be seen from the Board’s Decision, the Board had thoroughly analyzed and considered the applicant’s claims and all the evidence. The Board had laid out in paragraphs 35 to 43 of the Board’s Decision its findings on the credibility of the applicant’s claims and the Board’s finding of facts in relation to those claims. 26.In gist, the Board found that the applicant’s evidence at the Board’s hearing was confused and was inconsistent both with his previous claims and with his own evidence at the hearing. The applicant’s evidence about the religious demography of his village also differed from his previous claims and the Board considered his evidence in this regard made no sense. The Board considered that the applicant’s claims were neither coherent nor plausible and had no credibility. The Board concluded that the applicant’s claims about the basis of the dispute and the reasons for the departure of his various family members from the village were inconsistent and contradictory to the extent that the Board was satisfied his claims about a dispute with the neighbours were either greatly exaggerated or completely untrue. 27.Thus, the Board found that the applicant had not established that there were substantial grounds to support the conclusion that he would face a real risk of ill-treatment, arbitrary deprivation of life or persecution as claimed if he returned to Pakistan. 28.The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected as incredible, it is not necessary for the Board to consider the availability of state protection. 29.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). 30.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 31.The finding of facts, including assessment of evidence 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. 32.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. 33.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 34.For reasons aforesaid, the Leave Application is dismissed. Dated the 24th 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 [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. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment