Arslan Shahid v. Torture Claims Appeal Board
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HCAL 760/2023 [2026] HKCFI 4192 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 760 OF 2023
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 18 May 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
2.The Torture Claims Appeal Board (“the Board”) made a decision dated 3 March 2023 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 September 2021 (“the Director’s Decision”). 3.At the oral hearing before this court on 14 July 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Board’s Decision should be the only subject matter of the Leave Application. 4.The Board’s Decision can be viewed in the following hyperlink:- 5.The Board found that the applicant was unable to make out his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 6.In Form 86, the applicant named the Director and the Board as both the putative respondents and the putative interested parties, and spelt the Board’s name wrong. 7.As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be the putative respondent, and the Director should be the putative interested party. 8.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 3 March 2023”. The applicant’s case 9.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. 10.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 the Qureshi family (“the Qureshis”) due to his involvement in a dispute between the family of his brother-in-law Ilyas Iqbal (“the Iqbals”) and the Qureshis, over the land rights in a place called Sheikhu Qureshia. Oral hearing 11.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 14 July 2026. 12.When this court asked the applicant for his grounds of judicial review, he said that his case was a fighting case, his brother was shot, the opposing party belonged to PMLN while they belonged to another political party and the situation became worse. When this court asked the applicant what was wrong with the Board’s Decision, he just said that he was not satisfied with the Board’s Decision and that he had married in Hong Kong and his wife is a Hong Kong resident. Grounds for judicial review 13.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). 14.The applicant did not identify any ground for the intended judicial review in Form 86. In his supporting affirmation dated 18 May 2023, the applicant only stated that he was not satisfied with both the Director’s Decision and the Board’s Decision, they had not taken the ground situation of his country into account properly, the current situation in his country was very bad, there was lawlessness everywhere, and his life would be in grave danger if he returned there. 15.As said, at the oral hearing, the applicant only mentioned that his case was a fighting case, his brother was shot, the opposing party belonged to PMLN while they belonged to another political party and the situation became worse. He also said that he was not satisfied with the Board’s Decision, and that he had married in Hong Kong and his wife is a Hong Kong resident. Discussion 16.First of all, the applicant’s danger in his 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. 17.His new claims at the oral hearing, namely that his brother was shot, the opposing party belonged to PMLN while they belonged to another political party and the situation became worse, were not presented to the Board for assessment. 18.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 ground for the intended judicial review. 19.Moreover, the Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 20.The applicant did not state what ground situation of his country had the Board failed to take the into account properly. Thus, this general assertion put forward by the applicant in his supporting affirmation cannot help him either. 21.Further, the fact that he was married to a Hong Kong resident is not a ground for judicial review. 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. 22.Thus, none of the matters that were raised in the applicant’s affirmation or at the hearing before this court constitutes a valid ground in challenging the Board’s Decision. 23.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). 24.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 grounds being advanced by the applicant for the intended judicial review. 25.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 9 August 2022. Thus, the applicant was given the opportunity to present his case to the Board in person. 26.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. 27.The Board had laid out its assessment of the applicant’s claim and the inconsistencies that were noted in paragraphs 61 to 79 of the Board’s Decision, and it is not necessary to repeat the same here. 28.In gist, the Board accepted that the Iqbals and the Qureshis were in dispute, the Qureshis’ attack on Waris did take place and the applicant was the brother-in-law of Ilyas. However, the Board considered that the applicant’s involvement in the dispute was peripheral at most. The Board found that the applicant appeared to have attempted to insinuate himself into an existing situation but his only possible connection to the feud between the two families was to have accompanied the Iqbals to the police station and to court, and to have supposedly assisted Ilyas following his attack on the Qureshis in July 2016. The applicant was therefore never a party to the dispute. 29.Moreover, with regards to the alleged shooting of the Qureshis by Ilyas, the Board found from the copies of Ilyas’ passports that Ilyas had visited Pakistan frequently over the last several years, and it was unlikely that Ilyas would be able to live and work in the UAE and enter and depart Pakistan freely from time to time while subject to criminal charges in Pakistan. 30.The Board also found that the applicant had described a situation that, if true, was one where he could have involved the local authorities in the form of police for assistance. The Board considered it abundantly clear that the police were involved, seemingly even-handedly, in the dispute between the two families. The applicant’s claim that the police would not accept his complaint was implausible in the context of a feud that would have been well-known to the police. 31.The Board agreed with the Director on the assessment of the effectiveness of state protection, in that while there were shortcomings with the police in Pakistan, there was nothing to show that the authorities would be unable or unwilling to discharge its duties regarding the applicant. 32.Moreover, the Board had laid out its full reasons in paragraphs 81 to 86 of the Board’s Decision for its finding that the applicant could relocate within Pakistan to avoid any perceived harm from the Qureshis. 33.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. 34.The finding of facts, including the assessment of evidence 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. 35.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. 36.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 37.For reasons aforesaid, the Leave Application is dismissed. Dated the 29th 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