Case Document

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HCAL 14/2024

[2026] HKCFI 5411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 14 OF 2024

BETWEEN

	Saddique Waqar	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 or counsel 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. 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 2 January 2024, 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 December 2023 (“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/2024/HCAL000014_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 31 March 2022, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “Torture Claims APPeal Board NON-ReFoulement Claims Pet Tion OFFice” as the putative respondent and did not name any putative interested party.

4.In fact, only the Board should be named as the putative respondent, and the Director should be named as 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 if refouled to Pakistan, he would be harmed or killed by his wife’s boyfriend Khurram due to Khurram’s animosity towards the applicant as a result of the applicant’s disclosure of his wife’s affair with Khurram to people in Pakistan.

Disposal on paper

9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.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).

11.The applicant stated that he had life danger in his country in Form 86. In his supporting affirmation dated 2 January 2024, the applicant mentioned that he still had fear for his life in Pakistan and because of “this”, his father passed away in Pakistan, “they” were still threatening his younger brother in Pakistan and asked him to call and tell the applicant to come back to Pakistan and they would kill him.

Discussion

12.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.

13.With regards to the applicant’s claim in his affirmation that his father passed away and his brother was threatened in Pakistan, these matters were not presented to the Board for assessment and the applicant could not submit new evidence to this court in support of his non-refoulement claim. 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.

14.Thus, all the matters raised by the applicant in Form 86 and his affirmation could not amount to any valid ground to challenge the Board’s Decision.

15.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).

16.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

17.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 13 October 2023. The applicant was present and was thus given the chance to present his case to the Board in person.

18.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s evidence and the applicant’s claim were laid out in paragraphs 121 to 124 and 126 to 172 of the Board’s Decision respectively, and it is not necessary to repeat the same here.

19.In gist, the Board found that the applicant had only made bare assertions and he presented no objective proof to support them. The applicant claimed that he was assaulted by Khurram and 5 other unknown men once for 10 to 15 minutes when he was in Pakistan. The Board considered that evidence suggested that Khurram and his people had no real intention of seriously harming the applicant or killing him, as they could have done so during the incident, but they did not. There was also no evidence to support the applicant’s assertion that Khurram’s father held a significant position in the Pakistan-Tehreek-E-Insaf party and that Khurram was as powerful and influential as claimed.

20.Even assuming the threats from Khurram were true, the Board found that all Khurram was doing was making verbal threats. The applicant’s behaviour did not indicate that he in fact considered the threats against him were serious.

21.Moreover, the Board found that the alleged threats faced by the applicant to be localized and the applicant’s dispute with Khurram and his people was of a private nature and had nothing to do with the government. The applicant had never sought assistance from the Pakistani police or authorities in respect of the assault and alleged threats from Khurram.

22.The Board had considered very extensive country of origin information (“COI”) to assess the availability of state protection to the applicant in paragraphs 173 to 201 of the Board’s Decision. The Board was of the view that whilst there might be problems in Pakistan, the state offered reasonable protection against the abuse of power by the police and the authorities, and the applicant could avail himself of the protection should he return to the country. The country had taken steps to improve the enforcement of corruption activities against any person including those in the government. COI also indicated that there were avenues available to the applicant to seek redress and that the country was able and willing to provide state protection to its citizens. Thus, the applicant was able to access to state protection to deal with the threats he allegedly faced.

23.Moreover, the Board had given its full reasons in paragraphs 202 to 216 of the Board’s Decision for its conclusion that the applicant could relocate and find suitable employment to maintain himself in other areas of Pakistan. The applicant in fact admitted at the Board’s hearing that he could return and safely settle in a number of cities in Pakistan.

24.The Board therefore concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

25.The finding of facts relating to a non-refoulement claim, 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. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

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 errors 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 23^rd day of September 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 his 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: 23/09/2026 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: 23/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20135 Director of Immigration Putative interested party’s ref. no.: RBCZ 5000064/22 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)