Hussain Naeem v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1628/2021 on BabelCite. This High Court CFI judgment was delivered on 15 July 2026.
1. By way of Form 86 dated and filed on 30 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 23 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 4 cases
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HCAL 1628/2021 [2026] HKCFI 3744 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1628 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 30 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 23 November 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 under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 19 February 2021, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board and “NON-REFOULMENT CLAIMS PETITION OFFICE” as the putative respondents and named himself as the putative interested party, when only the Board should be the putative respondent, and the Director should be the putative interested party. 4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 5.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 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed by people of the Pakistan Muslim League (Q) due to his support for the Pakistan Muslim League-Nawaz. Oral hearing 8.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 25 June 2026. 9.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 10.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. 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 identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 30 November 2021. In the said affirmation, he only stated that he was not satisfied with the decision of the Immigration Department, and his life was still in danger in his home country. Discussion 13.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. 14.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). 15.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. 16.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 October 2021. Thus, the applicant was given the opportunity to present his case to the Board in person. However, the applicant refused to answer questions about his claims and stated that he did not wish to answer questions. 17.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. 18.The Board had specifically told the applicant that the Board had questions about aspects of his claims that were of concern, and warned the applicant that it might refuse his claim based on the information before it. Despite the warning, the applicant still refused to answer any of the Board’s questions of concern over his claims. 19.Due to the applicant’s refusal to clarify the Board’s concerns, which were laid out in paragraph 26 of the Board’s Decision, the Board was not satisfied that the applicant had made any genuine effort to substantiate his story. The Board was not satisfied that the applicant’s claimed political involvement, or the claimed attacks on him, had any credibility due to the vagueness and lack of detail in his claims, and the inconsistencies between those claims, such as they were, and the available country of origin information (“COI”). 20.Accordingly, the Board found that the applicant had not established that there were substantial grounds supporting the conclusion that he would face a real risk of ill-treatment, torture, arbitrary deprivation of life or persecution as claimed should he return to Pakistan. 21.The Board did not consider availability of state protection to the applicant. However, as the applicant’s claims were rejected as incredible, it is not necessary for the Board to consider the availability of state protection. 22.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). 23.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. 24.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. 25.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. 26.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 27.For reasons aforesaid, the Leave Application is dismissed. 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
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Cases cited in this judgment