Shah Syed Zafar Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1058/2022

[2026] HKCFI 3886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1058 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Levy:

The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 7 October 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 September 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 26 April 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1] . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001058_2022_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by a relative of his uncle due to a land dispute. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 4 June 2026. The applicant attended the hearing in person and informed the court that he was not feeling well. Hence, the court adjourned the hearing to 30 June 2026. At the adjourned hearing, the applicant appeared in person and confirmed that he was fit to proceed with the hearing. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

4.After the hearing, the applicant filed an affirmation on 3 July 2026 exhibiting additional documents such as port-mortem reports of his father and brother, and a First Information Report dated 24 September 2025.

Discussion

5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 did not contain any grounds. In exhibit “B” to the supporting affirmation, the applicant exhibited an English copy of the “First Information Report” dated 17 June 2019 (“FIR”) as well as a document in the Urdu language. It however provided no grounds.

7.At the hearing, the court asked the applicant if he wished to say anything in support of the Leave Application, he stated that his situation at home was more dangerous as his father and brother had been killed. He said he could produce documents to prove that on 24 September 2025, while his father and brother were travelling in a car, they were shot dead by 3 unknown persons who were believed to belong to the Criminal Control Department. The court explained to the applicant that firstly, the Urdu document in Exhibit “B” would not be admitted as evidence as it was not properly translated. In any event, the applicant confirmed that the Exhibit “B” documents were already placed before the Board. Insofar as the new and the recent evidence concerning the recent deaths of his father and brother are concerned, the court also explained to the applicant that the evaluation of evidence, including any new evidence, was not the role of the court.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the applicant was absent from the Board’s scheduled hearing. After having been satisfied that the applicant was absent without a reasonable excuse, the Board proceeded to consider the applicant’s appeal on paper in his absence without re-scheduling another hearing. After having considered all the documents, including the additional documents consisting of the FRI and a Register of Land Rights record (Board’s Decision [46]), the Board found numerous discrepancies in his evidence, and concluded that the applicant’s claimed risk of harm was exaggerated and unsustainable. It found that the applicant would not face any risk of harm if refouled. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The FRI exhibited as Exhibit “B” was already considered by the Board, and the other document in the Urdu language could not be admitted as evidence. Neither do the additional documents the applicant filed on 3 July 2026 can advance the Leave Application as any consideration of fresh evidence is beyond the role of this court. Hence, this Court is not satisfied that the applicant had advanced any valid grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

10.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 10^th day of July 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