Mahmood Shahzaib v. Torture Claims Appeal Board

HCAL 1588/2021

[2026] HKCFI 3737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1588 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 22 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 10 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/HCAL001588_2021_files/the_Board's_Decision.pdf

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”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 7 January 2020, which rejected the applicant’s 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 if refouled to Pakistan, he would be at risk of being harmed or killed by Chowdary Ishaq (“Ishaq”), his father-in-law and Chowdary Rukhsar Ahmed, his uncle-in-law (collectively, “Sana’s Family”). The applicant claimed that he had eloped and married Sana, Ishaq’s daughter. Afterwards, Sana’s Family shot the applicant’s father, mother, brother, sister and Sana dead.

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 said that there was a fighting case in Pakistan, his enemies killed his uncle’s son and his life was still in danger. He also mentioned that he was negotiating with the other parties in Pakistan and after that, he could go back to Pakistan. He wanted to show some pictures to this court, but as it was not for this court to accept new evidence to re-assess his non-refoulement claim, this court did not look at the pictures. Thereafter, the applicant just asked this court to check his case and reconsider his application.

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 identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 22 November 2021.

9.What the applicant said at the oral hearing before this court were not grounds for judicial review either.

Discussion

10.First of all, the applicant’s danger 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.

11.His new claim at the oral hearing, namely that his uncle’s son was killed by his enemies, as well as the new pictures that he wanted to show to this court, were not presented before the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Thus, these new matters cannot amount to any valid grounds for the intended judicial review.

12.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).

13.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 ground being advanced by the applicant for the intended judicial review.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 19 August 2021. Thus, the applicant was given the opportunity to present his case to the Board in person.

15.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.

16.The Board had laid out its findings on the credibility of the applicant’s claims in paragraphs 33 to 41 of the Board’s Decision and its material findings of fact in relation to his claim in paragraphs 55 to 66 of the Board’s Decision, and it is not necessary to repeat the same here.

17.In gist, the Board found that the applicant was not a credible witness. He had only made bare assertions and provided no objective proof of the same. The Board noted that the applicant, having claimed that he had married Sana, could not even give Sana’s age, the city/registrar their marriage was registered, and the names of Sana’s Family. The Board found it unconvincing that Sama’s Family would intend to cause the applicant harm or to kill him. In fact, the applicant did not receive any threats.

18.According to the applicant, he reported the murders to the police station in Gujrat but was informed that he should do so in Mirpur and he did not bring the same to Mirpur or other police station or government authorities.

19.The Board also noted that the applicant was in a very stable and sensible mind after the threats as he had been staying in various places in Pakistan for an extended period of over three years notwithstanding that he believed Sana’s Family was very powerful.

20.The Board thus formed the view that the applicant’s alleged harm, actual and perceived, from Sana’s Family was not imminent, and the ill-treatment by them, if any, had not reached a minimum level of severity. There was no indication that Sana’s Family were public officials or were acting in an official capacity, or that any political parties or the government in Pakistan was involved in the private dispute between the applicant and Sana’s Family.

21.The Board further found no evidence showing that Sana’s Family had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or that the applicant had a well-founded fear of persecution for any of the Convention reasons.

22.The Board also found from extensive, fully-referenced country of origin information (“COI”) that despite political influence on and incompetence of the Pakistani police, there were ongoing reforms and the Pakistan government had taken practical steps to monitor the conduct of the police and to improve their effectiveness. The Pakistan government did take actions to protect the rights of its citizens. The Board considered that reasonable state protection was available to the applicant.

23.More importantly, the Board had laid out its full reasons in paragraphs 92 to 98 of the Board’s Decision for its finding that it would not be unduly harsh for the applicant to relocate and live anywhere in Pakistan to avoid any perceived harm from Sana’s Family.

24.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.

25.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 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.

26.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.

27.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

28.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