Mir Ijaz Hussain v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1552/2021 on BabelCite. This High Court CFI judgment was delivered on 15 July 2026.
1. By way of Form 86 dated and filed on 9 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
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HCAL 1552/2021 [2026] HKCFI 3735 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1552 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 9 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
2.The applicant lodged his torture claim on 18 August 2007 and his claim was rejected by the Director of Immigration (“the Director”) on 23 January 2014 (“the Director’s 2014 Decision”). He then lodged a non-refoulement claim on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”) and the Director rejected his claim on the said grounds on 30 May 2018 (“the Director’s 2018 Decision”). 3.The Torture Claims Appeal Board (“the Board”) made a decision dated 5 June 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against both the Director’s 2014 Decision and the Director’s 2018 Decision. It is clear that the first date of decision mentioned in Form 86 was the date of the Board’s Decision, and the second one was the date of the Director’s 2014 Decision. 4.At the oral hearing before his court on 25 June 2026, the applicant confirmed that only the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:- 5.The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection on any of the applicable grounds, including Torture Risk[4], BOR 2 Risk, BOR 3 Risk and Persecution Risk, under the USM. Accordingly, the Board dismissed the applicant’s appeal/petition and affirmed both the Director’s 2014 Decision and the Director’s 2018 Decision, which rejected the applicant’s non-refoulement claim. Amendments 6.In Form 86, the applicant did not name any putative respondent and named himself as the putative interested party, when the Board should be the putative respondent, and the Director should be the putative interested party. 7.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision. 8.Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 5 June 2020”. Late application 9.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 10.However, the applicant filed Form 86 on 9 November 2021, which was more than 17 months after the Board’s Decision (made on 5 June 2020). The applicant was hence late for more than 14 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 11.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
12.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. 13.At the oral hearing before this court on 25 June 2026, the applicant explained his delay in making the Leave Application by saying that his recognizance paper was accidentally damaged when it was washed with his clothes in the washing machine. It took him over a year to apply and obtain a new recognizance paper. He added that he had attempted to file the Leave Application, but the registry refused to let him do so with a damaged recognizance paper. 14.This court notes that the applicant’s current recognizance paper was issued on 10 January 2022, after the Leave Application was made. It does not tally with the applicant’s allegation that he had to wait for the new recognizance paper before he could file the Leave Application. 15.A delay of more than 14 months is very substantial, and the explanation given by the applicant is not satisfactory as aforesaid. More importantly, there is no merit in the Leave Application. 16.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 17.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The applicant’s case 18.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. 19.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being harmed or killed by Shujat Group of Pakistan Muslim League (Q) (“PMLQ”) and by Meher Ansar Ali. Oral hearing 20.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 25 June 2026. 21.When this court asked the applicant for his grounds of judicial review, he merely said that he still faced the same problem with PML(Q) in his country. He also mentioned that he was married in Hong Kong and was applying for a dependent visa. Grounds for judicial review 22.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). 23.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 9 November 2021. In the said affirmation, he only stated that he still had problem in Pakistan because PML was in government and he had life risk if he went back to Pakistan. He also mentioned that he was married with a Hong Kong resident. 24.As said, at the oral hearing, the applicant only reiterated that he still had problem with PML(Q), he was married in Hong Kong and was applying for a dependent visa. Discussion 25.First of all, the applicant’s problems with PML(Q) in his home country 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. 26.Further, the fact that he was married to a Hong Kong resident is not a ground for judicial review either. As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. 27.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). 28.Thus, 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. 29.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 11 October 2019. Thus, the applicant was given the opportunity to present his case to the Board in person. 30.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. 31.The Board had laid out its assessment of the applicant’s claim and its credibility in paragraphs 57 to 66 and paragraphs 68 to 69 of the Board’s Decision respectively, and it is not necessary to repeat the same here. 32.In gist, the Board found that the applicant’s evidence relating to the facts on which his claim was based relied largely on hearsay information and speculation, and also amounted to inconsistent and unreliable evidence. The First Information Report adduced by the applicant showed inconsistencies, and particularly, a different time of the alleged shooting incident. Although the applicant claimed to be a wanted person in his own country, the fact that he would face a criminal investigation in Pakistan would not be sufficient to protect him from refoulement. There were no state actors in any of the incidents mentioned in the applicant’s claim. 33.Moreover, the claimed threat against the applicant occurred in 2001 and the applicant left his home village since July 2001. With the passage of time, it would not be reasonable to expect that any of the people in the claimed threat would still have any interest in him. The applicant in fact did not know the people who threatened him. 34.The Board also considered that the long delay on the part of the applicant in making his claim for non-refoulement protection cast doubt on his credibility. 35.The Board was satisfied that there was no reliable evidence to show that there was a genuine risk of harm against the applicant in Pakistan. The Board was not persuaded, even to the low standard required, that the applicant’s evidence was credible, and that there was a genuine risk of harm against him, or that he had been ill-treated in his home country. The Board decided to reject the applicant’s evidence. 36.On the issue of state protection, the Board found from extensive, fully-referenced country of origin information (“COI”) that reasonable state protection was readily available to the applicant in Pakistan. 37.Further, the Board had no doubt that it would not be unduly harsh for the applicant to relocate internally, and the applicant should be able to make a living at a place of his choice in Pakistan. 38.Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM. 39.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 40.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 error 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. 41.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 42.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits. Dated the 15th 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 [1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [2] 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. [3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees. [4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment