Adnan Waqar v. Torture Claims Appeal Board

HCAL 1544/2021

[2026] HKCFI 3734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1544 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 8 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 1 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001544_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 July 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the Director’s Decision, which rejected his non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be killed by a landowner named Saif-Ur-Rehman (“Mr Rehman”) in his home village due to a land dispute. The applicant claimed that Mr Rehman once brought his two dogs to the applicant’s land and signaled the dogs to attack him. The applicant shot Mr Rehman’s two dogs dead and Mr Rehman filed a police report against the applicant for the killing of his dogs.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application and his case was heard on 25 June 2026.

6.When this court asked the applicant for his grounds of judicial review, he merely asked this court to review his case. He added that if his application was refused, he would go back to his country.

Grounds for judicial review

7.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).

8.The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 8 November 2021.

9.What the applicant said at the oral hearing, namely that he asked this court to review his case, did not amount to any valid ground either.

Discussion

10.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).

11.Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

12.This court notes that the Board assessed the applicant’s appeal/petition without an oral hearing. The Board had given detailed reasons for not having an oral hearing in paragraphs 29 to 35 of the Board’s Decision. In gist, the Board was satisfied that it was reasonably clear that the applicant had provided everything he wished the Board to consider and that there was nothing either explicitly or implicitly lacking in the information before the Board. More importantly, despite concerns about credibility raised by the Director, the Board had decided to presume, for the benefit of the applicant, that his factual assertions could be relied upon. Thus, the Board was satisfied that the applicant’s appeal/petition could be justly determined without a hearing.

13.There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

14.Thus, it was not a must for the applicant to have an oral hearing before the Board. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the Board accepted the factual basis of the applicant’s claims and did not challenge his credibility. Thus, the high standards of fairness required for the determination of the applicant’s appeal/petition was not compromised by not having an oral hearing.

15.As aforesaid, in assessing the applicant’s appeal/petition, the Board accepted the applicant’s claims, namely that he owned a parcel of land across which his neighbour sought free passage to a public road. The applicant wished his neighbour to pay for that passage. In the course of the dispute about this matter, the applicant killed the neighbour’s dogs and the neighbour both lodged a complaint about the dogs to the police and sent henchmen to find the applicant.

16.With regards to the land dispute, the Board found that the applicant could avoid the central cause of his dispute with Mr Rehman by granting free passage across his land to his neighbour. Since the ownership of land was not a protected characteristic and this was not a case where the applicant would be giving up his land or unable to use it, merely forgoing a fee for passage across it, it was legitimate and reasonable to expect the applicant to modify his conduct, rather than relying upon international protection to protect a financial asset.

17.In relation to the police report that had been made by Mr Rehman about the applicant’s killing of his dogs, the Board had conducted extensive research on country of origin information (“COI”) and found that there was only one provision in Pakistani law relating to criminal liability for the killing of a domestic animal. Significantly, the Board found that section 9 of the Prevention of Cruelty to Animals Act 1890 stated that “A prosecution for an offence against this Act shall not be instituted after the expiration of three months from the date of the commission of the offence.”

18.Taking the applicant’s evidence at its highest, the Board found that there was no indication whatsoever that the police had initiated a prosecution against him for the killing of the dogs within three months of that event, or that they had even investigated the matter. Even accepting that a First Information Report was lodged about the dog killing, the legislation precluded any prosecution against the applicant now. That prosecution having not been initiated when the applicant was in Pakistan, there was no risk at all to the applicant of prosecution for a dog offence upon return to his country.

19.Finally, the Board considered the applicant’s general risk from Mr Rehman and his henchmen. Given that the applicant could avoid the central cause of his dispute with Mr Rehman by granting free passage across his land, the Board considered that there would be no reason for Mr Rehman to have serious animus against the applicant if he did so. The Board was of the view that the real issue of the applicant’s case only related to the land dispute. Once the applicant altered his behaviour, that dispute would fall away and no real risk to him would arise.

20.Moreover, the Board had given its full reasons in paragraphs 67 to 78 of the Board’s Decision for its finding that the applicant plainly had a reasonable internal relocation alternative. In gist, the Board stated that in case the Board was wrong in the above-mentioned conclusion, and Mr Rehman would continue to pursue the applicant either because of the dog dispute or for some other unknown reason, the Board found that the applicant’s dispute with Mr Rehman was a localised one. There was no evidence that Mr Rehman’s influence stretched outside the local village. The Board found that there was no reason whatsoever why the applicant could not move to some other part of Pakistan and re-establish his life, find accommodation and employment.

21.Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM if he was refouled to Pakistan.

22.The finding of facts, including assessment of evidence, COI 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.

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 15^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