Case Document

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HCAL 1493/2021

[2026] HKCFI 4757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1493 OF 2021

BETWEEN

	Shah Naseer Hussain	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 13 August 2021.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The leave Application

1.By way of Form 86 dated and filed on 27 October 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 13 August 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/HCAL001493_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 affirmed the decision of the Director of Immigration (“the Director”) dated 16 June 2020, which rejected his non-refoulement claim.

Amendments

3.In Form 86, the applicant named “TORTURE CLAiMS APPEAL BOARD NON-REFOULMENT CLAiM PETiON OFFiCE” as the putative respondent, and did not name any putative interested party.

4.In fact, only the Board should be the putative respondent, and the Director should be the putative interested party.

5.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.

6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

7.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.

8.In sum, the applicant claimed for non-refoulement protection because of his fear of being killed by a man named Malik Yasir Khan (“Malik”) if he returned to Pakistan.

9.The Board also summarised the applicant’s case as stated in paragraph 10 of the Board’s Decision. In gist, the applicant claimed that he saw Malik and his two men carrying a cart with a corpse in it one night around March 2018. Malik took out a pistol and threatened the applicant that if he spoke a word to anyone about what he saw, he would face the same fate as the victim. The applicant found out that the police was informed about the corpse the next morning. Some students saw the corpse and the school principal called the police. Following the discovery of the corpse, the police registered a First Information Report against someone unknown, but not Malik. Fearing he might be killed as he was the only witness, the applicant called the police in the evening of another day and informed them that he saw Malik and two other men carrying the body out of the village.

10.After half an hour later, the applicant called the police again, as some people fired pistols and gunshots at his house. The applicant and his family were inside the house but not harmed. The applicant’s neighbour later told him that the attackers were 4 men including Malik. Before the applicant went to the police station, he received a call from Malik who told him to meet him at his farmhouse to sort out the matter. The applicant did not do so, but fled his home to hide from Malik, first to Attock city for the night, then to Karachi where he stayed for several months. After being informed by a friend that Malik had found out his location and had sent people to kill him, the applicant left Karachi at the end of 2018 and went to Islamabad, where he stayed for 4 to 5 months.

11.The applicant finally left Pakistan on 18 June 2019, and sneaked into Hong Kong on 2 October 2019. On 23 October 2019, the applicant raised a claim for non-refoulement protection.

Oral hearing

12.The applicant requested for an oral hearing and his case was heard on 13 August 2026.

13.At the hearing, when this court asked the applicant for his grounds of the intended judicial review, the applicant said that he was a witness to a murder and he had submitted the pictures of the person murdered and the person committed the murder to the Board, but the Board did not pay attention to his evidence. The applicant also said that the Board told him that there were authorities in his country that could help him, but when he reported the matter to the authorities, they did not help him.

14.The applicant said that he still had those pictures at home, but all of them had been submitted and were in the hearing bundle for the Board’s consideration. The applicant asked this court to re-consider his case.

Grounds for judicial review

15.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).

16.The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 27 October 2021. He merely stated in the said affirmation that he was not satisfied with the decision of the Immigration Department and his life was still in danger in his home country.

17.As aforesaid, the applicant said at the oral hearing before this court that the Board did not pay attention to his evidence, namely the pictures of the person murdered and the person committed the murder, and that the authorities did not help him.

18.Thus, it seems that the applicant is challenging the Board’s neglect in paying attention to his evidence and its finding on the availability of state protection to him.

Discussion

19.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).

20.Thus, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid.

21.At the oral hearing before this court, the applicant asserted that the Board had failed to consider the pictures he submitted to support his claim.

22.As can be seen from paragraph 7 of the Board’s Decision, the Board was clearly aware of the existence of some photos being attached as part of the applicant’s Non-refoulement Claim Form (“NCF”). Although the Board said that it “had gone through all the evidence contained in the Hearing Bundle with the Appellant”, it seems that the Board had not made any findings in relation to those photos. The Board did not mention the contents of those photos or what they were intended to show. The Board did not indicate whether the photos were accepted or rejected either.

23.As those photos are not before this court, it is not possible for this court to confirm whether those photos are the same pictures referred to by the applicant at the oral hearing. However, if those photos did show the person murdered and the person committed the murder, they could be evidence supporting the applicant’s case. It is incumbent upon the Board to consider the photos and made findings in relation to the same. However, as aforesaid, the Board did not make any findings as such, but merely said that it had considered all the evidence.

24.As stated in paragraph 5 of the Board’s Decision, the Board was in fact aware of the requirements laid down in AM v The Director of Immigration, unreported, HCAL 102/2012, that it must consider all issues of facts (including issues of credibility) and law and make its own determination in respect of them. Thus, simply by saying that it had considered all the evidence without making any determination in respect of them, the Board had failed its duty.

25.In fact, this court notes that the Board did not make any finding on the applicant’s credibility at all. After giving a summary of the applicant’s case in paragraph 10 of the Board’s Decision and after stating how it should consider the applicant’s evidence in paragraphs 11 to 15 of the Board’s Decision, the Board did not make a finding as to whether the applicant was a credible witness or not. There was also no finding as to whether the applicant’s case was to be believed or not. Thus, it is not clear whether the Board had accepted the applicant’s account of the events and assessed his non-refoulement claim based on the factual matters raised by the applicant.

26.The Board gave its opinion that the applicant had failed to demonstrate that the ill-treatment attained a minimum level of severity, but its opinion was based on the facts that the applicant had never been subjected to physical violence by Malik or his associates, and that, whilst the applicant’s house was being fired at during the First Incident, and he and his family were present inside the house, the applicant was unharmed (see paragraphs 19 and 20 of the Board’s Decision).

27.In this court’s view, such an opinion is clearly irrational. The applicant’s case was that after he reported Malik to the police, some people came and fired pistols and gunshots at the applicant’s house and the attackers were going after him (see paragraphs 10(x) and (xi) of the Board’s Decision). That being the case, the applicant could have been killed by the gunshots. The applicant was unharmed possibly because it was fortunate that he could avoid the gunshots. It is therefore illogical and irrational for the Board to say that such an ill-treatment did not attain a minimum level of severity.

28.Since the Board did not make any finding of facts in relation to the applicant’s case, the applicant’s claims that some people came and fired pistols and gunshots at his house and they were going after him could in fact be true. In other words, there was indeed a real risk that the applicant could be killed by Malik and his men.

29.Thus, it is this court’s view that, apart from not making determination of the photos produced by the applicant, the Board in fact did not make any or any rational determination of the applicant’s case and the claimed risk.

30.As to the second limb of the applicant’s oral submission, namely that the Board might have erred in its decision regarding the availability of state protection to the applicant, this court notes that the Board only mentioned in paragraph 22 of the Board’s Decision that “Following the Second Incident, the Appellant was able to apply for his passport and leave the country without difficulty. That was so despite the alleged threat from Malik, and Malik’s power stemming from his position at and connection with PTI[1]”.

31.Again, the Board did not explicitly make findings in relation to the alleged status of Malik, his power stemming from his position and connection with PTI or his connection with influential persons such as his uncle and his cousin, who were claimed by the applicant to be a Minister for the Climate for PTI, which was the ruling party in Punjab Province, and the Chairman of Union Council from PTI, respectively.

32.The Board’s conclusion in respect of the availability of state protection to the applicant was stated in paragraph 32 of the Board’s Decision, namely that “Based on the objective COI[2] cited above and the facts of the Appellant’s case, I find that adequate state protection is available to the Appellant in Pakistan to protect his [sic] from the alleged threats”.

33.However, such a conclusion may not be well-founded, as the COI referred to by the Board only dealt with police corruption and harassment. The Board did not make any determination in respect of Malik’s power and connections as claimed by the applicant. Without such a determination, it is not clear whether Malik’s influence (not based on any corruption) could prevent the applicant from having state protection.

34.It is therefore this court’s view that the applicant’s challenge on the Board’s Decision regarding the Board’s finding on the availability of state protection is arguable.

35.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board might have failed its duty in making determination on the applicant’s evidence and his case, and there could be irrationality in respect of the Board’s assessment of the applicant’s risk as aforesaid.

36.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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.

37.As it is this court’s view that the intended judicial review is reasonably arguable, leave should therefore be granted to the applicant to apply for judicial review in respect of the Board’s Decision.

Conclusion

38.For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

39.The applicant is directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 19^th day of August 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or the applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 19/08/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 19/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 17036/20/6/69/P3353 Director of Immigration Putative interested party’s ref. no.: QA T/C 6/20 (formerly RBCZ 10900/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)