Ali Khawar v. Torture Claims Appeal Board
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HCAL 204/2026 [2026] HKCFI 4432 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 204 OF 2026
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 19 January 2026, 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 12 September 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 March 2024 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board / “Non-ReFoulement Claims Petition OFFice” and the Director as both the putative respondents and the putative interested parties, when only the Board should be the putative respondent, and only 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 party 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”. Late application 6.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. 7.However, the applicant filed Form 86 on 19 January 2026, which was more than 16 months after the Board’s Decision (made on 12 September 2024). The applicant was hence late for more than 13 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. 8.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
9.In the applicant’s supporting affirmation dated 27 October 2025 under the heading “Reason for Late fileing [sic]”, the applicant made an application for extension of time to file the Leave Application. 10.The reasons provided by the applicant for his delay were that: (1) he was serving sentence in Pik Uk Prison (“Pik Uk”) for 15 months; (2) he received the Board’s Decision on 12 September 2024 (ie the date of the Board’s Decision) while serving his sentence and he was not in a stable mind and was living in despair to decide whether he should go back to his country or stay in Hong Kong. After confirmation from a family member in Pakistan that his life was still at risk if he returned to Pakistan, he decided to file the Leave Application after his release from Pik Uk and transferred to Tai Tam Gap Correctional Institution (“TGCI”); (3) he was unrepresented and did not have any legal advice and did not have much knowledge of law; (4) he did not have money to pay the filing fee when he was transferred to TGCI, and only filed the application with the help of a friend who helped him with the filing fee; and (5) he did not read and write English, and he made the application with the help of an inmate. 11.Since the applicant was absent at the oral hearing before this court on 14 July 2026, no elaboration on the above reasons was given. 12.A delay of more than 13 months is very substantial. The explanations given in the applicant’s supporting affirmation are not satisfactory, as he clearly indicated that he received the Board’s Decision in time. The fact that he was imprisoned would not have prevented him from taking out the Leave Application, as he could do it through the prison officer. His mental state and dilemma in deciding whether to go back to his country or to stay here cannot be an excuse for such a long delay. There was also no reason why he needed so long to find a friend and an inmate to help him to pay the filing fee and/or to assist him in the filing of the Leave Application. Even giving him the benefit of the doubt to the extent that the explanations were accepted, the Leave Application has no merit at all as discussed below. 13.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 applicant’s application for extension of time to file the Leave Application is refused. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 14.However, for the sake of completeness, this court will still deal with the merits of the Leave Application as discussed below. The applicant’s case 15.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. 16.In sum, the applicant claimed for non-refoulement protection because he changed his allegiance from Pakistan Muslim League (N) (“PML(N)”) to become a supporter of Pakistan Tehreek-e-Insaf (“PTI”), and he feared that he would be killed or severely harmed if refouled to Pakistan. He claimed that he would suffer harm by the police or by men acting on the order of Rana Hyatt Khan (“Khan”), who was a Member of the National Assembly belonging to PML(N). He also claimed that he had faced beatings and continuous harassments since his participation in a fight against supporters of PML(N) at a rally on 9 May 2023 in Lahore. Oral hearing 17.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 14 July 2026. 18.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. 19.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 20.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). 21.The applicant did not identify any ground for the intended judicial review in Form 86. 22.In his supporting affirmation dated 27 October 2025, the applicant raised a number of grounds, which are summarised as follows:-
Discussion 23.First of all, the applicant’s claim in Ground (1), namely that the Board’s Decision was made wrongly without any consideration of his case and was not reasonable and fair, was plainly not arguable, as it was just a general allegation without any specificity. 24.Grounds (2) and (3) were advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), these 2 Grounds can simply be ignored. 25.In Ground (4), the applicant asserted that there was procedural impropriety in that the Board rejected his request for time to gather documents in support of his claims again after the documents were lost. However, from the Board’s Decision, it does not show that such request was ever made. There is also nothing in the Board’s Decision showing that the applicant had claimed to have been suffering from psychological trauma of being sentenced to prison and remand, and was not mentally prepared for the hearing. 26.In any event, the Board in fact assessed the applicant’s claims by giving him the benefit of the doubt, and accepted the following aspects of the applicant’s claims without any documents supporting the same:-
27.It is therefore clear that the Board proceeded to determine the applicant’s claims based on the information provided by the applicant despite the lack of documents in support of his claims. The applicant did not state what documents he could have gathered to substantiate his claims or to enhance his prospect of success. Given the circumstances, this court is of the view that there is no procedural unfairness to the applicant, even if the Board had rejected his request for time to collect documentary evidence. 28.In his supporting affirmation, the applicant produced two Death Registration Certificates in foreign language and some photos showing rioting to this court. However, as the applicant was absent at the oral hearing, there was no elaboration on how those documents could help the applicant’s case. In any event, as the Board had accepted the applicant’s claims as mentioned above, this court does not find that the documents and photos contained in the applicant’s supporting affirmation could advance his case any further. 29.The applicant’s allegation in Ground (5) that it was unreasonable and procedurally unfair for the Board’s hearing to be conducted via video call, has no merit. It is not a must for the Board to conduct a hearing by availing the applicant in person physically. As can be seen from paragraph 9 of the Board’s Decision, and also by the applicant’s own admission, he was being held in custody at the time of the Board’s hearing. There was nothing wrong for the Board to conduct a hearing via video call under such circumstances. At the Board’s hearing, an interpreter in the Punjabi/Urdu and English languages was assisting the applicant. If the applicant did not hear the Board or the interpreter properly, and/or could not understand what the interpreter said, he could and indeed should have told the Board there and then. 30.In Ground (6), the applicant accused the Board for only making the same decisions to confirm the Director’s decisions and relying on COI to determine that internal relocation option was available for every non-refoulement claimant, but this ground is simply irrelevant to the applicant’s case, as the Board did not make any ruling on the viability of internal relocation for the applicant whatsoever. 31.As can be seen from paragraph 54 of the Board’s Decision, the Board found that the applicant did not face a real risk of any harm in the nature, or in the severity, proscribed for the purposes of non-refoulement protection pursuant to the laws of Hong Kong at all. Hence, it was not necessary to determine the viability or reasonableness of internal relocation for the applicant. The fact that the Board rejected other non-refoulement claims, whether on the basis of viability of internal relocation or not, has no bearing to the applicant’s case, which was assessed based on his own circumstances. 32.In Ground (7), the applicant challenged the Board’s finding that he was not an exception to the general rule that low-level members of opposition parties were not generally targeted for serious harm. However, the Board had given its full reasons in the second half of paragraph 43 of the Board’s Decision why it did not accept the evidence before it, including COI, that could show that the applicant’s case was an exception to the general rule. This was the Board’s finding of fact, which was within its exclusive ambit in assessing the applicant’s claims. This court finds nothing wrong or unreasonable for the Board to make such a finding. 33.The applicant also advanced in Ground (7) that the Board’s refusal to accept his story or evidence was based on discrimination rather than the relevant matters of his problem. However, this seems to be the applicant’s own speculation only. It is apparent from the Board’s Decision that every aspect of the applicant’s claims had been duly considered and carefully analysed by the Board. There is nothing to show that the applicant’s case was dismissed based on the Board’s discrimination of him. 34.In Ground (8), the applicant alleged that the Board’s Decision was unreasonable, in that if the Board had indeed given him the benefit of the doubt, the Board was contradicting itself when it found the applicant was not a credible witness, and there were many contradicting explanations in the Board’s Decision. 35.As aforesaid, the Board assessed the applicant’s claims by giving him the benefit of the doubt and accepted most if not all of the factual background of the applicant’s case. Nevertheless, the Board found no evidence to suggest that the applicant was at any time a significant activist, or that he held any significant role or office, either in respect of PML(N) or in the context of PTI. The fact that the Board had given him the benefit of the doubt in some aspects of his claims did not mean that the Board could not consider other matters in rejecting his non-refoulement claim. 36.In Ground (9), the applicant claimed that the Board concluded that he was a liar because he was homeless in Hong Kong, and that conclusion had put him in a very bad image. However, the Board had set out its findings in relation to all aspects of the applicant’s case in paragraphs 43 to 52 of the Board’s Decision. The Board’s conclusion that the evidence before it did not demonstrate that the applicant faced a real risk of harm at the hands of Khan, anyone else in PML(N) or from the police in Pakistan was made after careful examination of the applicant’s case, the evidence and COI before the Board. There is nothing to substantiate the applicant’s assertion that the Board concluded that his claim was not credible simply because he was homeless in Hong Kong. 37.The applicant asserted in Ground (10) that the Board failed to take into consideration the extent of power Khan had in his country and erred in its assessment of internal relocation, and the Board only followed the Director’s findings in this regard. However, it is plain that the Board had assessed the applicant’s case on the assumption that Khan was a MLA as claimed. More significantly, and as aforesaid, the Board did not make a ruling on viability of internal relocation for the applicant at all. Thus, Ground (10) is totally unfounded. 38.By the same token, the applicant’s claim in Ground (12) that the Board wrongly found that internal relocation would be reasonably viable for him was groundless. 39.Similar to Ground (8), the applicant asserted in Ground (11) that if the Board accepted that his evidence and statements appeared true with COI (which indicated that violence sometimes erupted in conflicts between supporters of rival political parties), the Board should not have refused his claim. However, under this head, while the Board accepted that the applicant might have faced some minor mistreatments in confrontations that he had experienced, the Board found that he had not suffered harm with the severity or seriousness proscribed for the purposes of non-refoulement protection. Again, the Board’s acceptance of the factual background of the applicant’s case does not oblige the Board to accept the applicant’s non-refoulement claim without assessing his risks pursuant to the applicable grounds under the USM. 40.In the first limb of the applicant’s Ground (13), the applicant accused the Board for failing to properly investigate the past ill-treatment he suffered. He claimed that the Board had failed to apply the high standards of fairness in that it did not properly investigate the injuries he sustained, and the Board did not exercise its power to require the applicant to undergo a medical examination when the applicant stated that he was prepared to do so. 41.However, medical examination of non-refoulement claimants is not a must. If the applicant believed that the medical/physical condition of his body would support his claim, he could have insisted on a medical examination. Even if the Board did not order or require the applicant to undergo a medical examination, the applicant could submit a medical report on his own volition for the Board’s consideration, but he did not do so. The applicant cannot simply make a subsequent complaint like that after the Board’s Decision. 42.In the second limb of the applicant’s Ground (13), the applicant alleged that the Board failed to inform him that there was insufficient evidence to prove his claims that the police in Lahore had knowledge of him and that Khan was powerful in Pakistan. 43.In fact, the Board provided its full reasons in paragraph 48 of the Board’s Decision for a finding that it did not accept his claim that the police continued to come to his house, or to apprehend him and to ask him questions about his political opinions or ask him to switch allegiance back to PML(N) as he claimed. Further, the Board did not find that the police would have an adverse interest in the applicant for reason of his political opinion, or for any other reason. These all fall within the Board’s ambit in making finding of facts, and this court does not find any unreasonableness or irrationality in such findings. 44.As to Khan’s power, the Board had already assessed the applicant’s case on the assumption that Khan was a MLA as claimed, the applicant knew Khan and was known by Khan, Khan might have been disappointed at the switch of support by the applicant from PML(N) to PTI and the switch of support by the applicant, his brothers and his family might have become apparent when the applicant and his family ceased extending their previous welcome and reception to Khan when he would visit their village. However, the Board found nothing in the evidence to suggest that either Khan, or Khan’s followers, developed such an animosity against the applicant, or an intention to inflict serious harm on the applicant, or that they had such an intention. Thus, no matter how powerful Khan was, the applicant was not at risk of harm from him. 45.The applicant’s complaints in Ground (14) were all about the Board’s finding of facts. This court will not interfere unless there are errors of law, unreasonableness or irrationalities involved, and this court does not find any such flaws. 46.In relation to the allegations in Ground (14)(i) concerning Khan’s power, this court has already discussed about it in paragraph 44 above. As to his brothers’ death, this court will discuss it in paragraph 55 below. 47.Ground (14)(ii) concerns the applicant’s alleged membership in PTI. As can be seen from paragraphs 25 and 44 of the Board’s Decision, it was clearly the applicant’s own evidence that he was not a member of PTI. His assertion in the affirmation that he had an identity card showing he was a member of PTI was not presented before the Board. Despite that, the Board did accept that the applicant originally supported PML(N), he became impressed with the leadership of Imran Khan of PTI and thereafter ceased supporting PML(N). 48.Thus, even without the production of the alleged proof of membership, the Board had accepted the applicant’s original support for PML(N) and his switch of support to PTI. However, the Board found no evidence to suggest that the applicant was at any time a significant activist, or that he held any significant role or office, either in respect of PML(N) or in the context of PTI. This court does not see that the proof of membership, even if true, will enhance the applicant’s role in PTI for the sake of assessment of his non-refoulement claim. 49.As to Ground (14)(iii), the Board did assess the applicant’s claim that he was not doing anything illegal in the rally on 9 May 2023, but the police still arrested and detained him. The Board in fact accepted that he attended the rally as claimed. However, the Board did not accept that the applicant’s profile or his political activities were so significant that the police would mount a continuing program of pursuit or harassment as he had claimed. The Board did not accept his claim that the police continued to come to his house, or to apprehend him and to ask him questions about his political opinion or ask him to switch allegiance back to PML(N) as he had claimed. These were all finding of facts that the Board was entitled to make. 50.The second limb of the applicant’s assertions in Ground (14)(iii), namely that the police officer who arrested him was supportive of Khan and the applicant had seen him in Khan’s party and office many times, were not presented before the Board. 51.Similarly, the applicant’s claim in Ground (14)(viii) that he was targeted because he was a vote bank for Khan was not presented before the Board for assessment. 52.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. 53.Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim based on matters that had not been presented to the Board. 54.Ground (14)(iv) is simply unfounded. As mentioned above, the Board did not make any finding on internal relocation at all. 55.In respect of his brothers’ death as alleged in Ground (14)(v), the applicant in fact told the Board himself that his brothers were killed in accidents (see paragraph 23 of the Board’s Decision). He later told the Board that he thought the accidents were caused by his enemies (see paragraph 28 of the Board’s Decision). The Board accepted that the applicant’s brothers were killed in accidents in 2020 and 2022 respectively. However, the Board found that the applicant’s evidence in relation to their deaths was nothing more than his speculation and unsupported surmise. On the evidence before it, the Board did not accept that his brothers’ accidental deaths were caused by foul play, or for reason of their political opinion, or for their respective political activities. Again, the Board was entitled to make such finding of facts. 56.With regards to the applicant’s disagreement with the UK Home Office reports as alleged in Ground (14)(vi), his assertion that low-level members were easily targeted, and that he was being found even when he relocated to Lahore, the Board was fully aware of the applicant’s arguments in these respects (see paragraphs 30 and 32 of the Board’s Decision respectively). The Board had not specifically referred to any COI from the internet, as claimed by the applicant in his affirmation. 57.More importantly, the applicant’s assertion in Ground (14)(vii), namely that the Board mentioned that the applicant would be safe in other cities in Pakistan and the risk he faced was low, was plainly unfounded. As can be seen in paragraph 54 of the Board’s Decision, the Board found the applicant did not face a real risk of any harm in the nature, or in the severity, proscribed for the purposes of non-refoulement protection pursuant to the laws of Hong Kong at all, hence it was not necessary to determine the viability or reasonableness of internal relocation for the applicant. Thus, the Board did not make a ruling on the viability of internal relocation for the applicant whatsoever. 58.The applicant’s danger in his home country had indeed 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. 59.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). 60.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. 61.As aforesaid, every aspect of the applicant’s case had been duly and carefully considered by the Board. 62.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. 63.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. 64.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 65.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits. Dated the 5th day of August 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