Ahtisham v. Torture Claims Appeal Board
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HCAL 1082/2023 [2026] HKCFI 5425 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1082 OF 2023 BETWEEN
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 4 July 2023, 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 26 June 2023 (“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 9 August 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection. Amendments 3.The applicant named the Board and the Director as the putative respondents and the Board as the putative interested party in Form 86. 4.In fact, the Board should only be named as the putative respondent, and the Director should be named as the putative interested party. 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 or killed by the family members of a female named Mehwish, who was killed by her own family in 2010 due to her relationship with Shaan, the applicant’s cousin. The applicant claimed that Shaan had fled his home town and disappeared after Mehwish was killed, and that Mehwish’s family believed that the applicant was close to Shaan, was involved in Shaan’s escape and should have known Shaan’s whereabouts. 8.The applicant claimed that one day in 2018 when the applicant was out, Mehwish’s family went to his house with a man named Adnan, who was released from prison, and threatened to kill the applicant and claimed that they suffered disgrace and insult from society. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application and his case was heard on 17 September 2026. 10.When this court asked the applicant for the grounds of his intended judicial review, he merely said that he had some problems. When this court asked him what was wrong with the Board’s Decision, he replied that it was not wrong, but he was confused and could not figure it out. He reiterated that he had some problems back in Pakistan, but confirmed that his problems had been assessed by the Board. 11.The applicant then said that there was fighting going on in Pakistan and he had a video which he wanted to show to this court. However, the applicant said that he only got the video a few days before the hearing, hence the video had not been shown to the Board. This court then explained to him that he could not use new evidence as a ground for judicial review, and he had nothing further to say. Grounds for judicial review 12.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). 13.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 4 July 2023. He only mentioned in the said affirmation that he sought leave to apply for judicial review against both the Director’s Decision and the Board’s Decision. 14.As aforesaid, at the oral hearing before this court, the applicant confirmed that there was nothing wrong with the Board’s Decision. He only said that he still had problems in his country and he wanted to submit a video showing the fighting in Pakistan as new evidence to support his non-refoulement claim. Discussion 15.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore deal with the Leave Application in respect of the Board’s Decision only. 16.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.With regards to the video which the applicant intended to submit to this court as new evidence 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. 18.Thus, what the applicant said at the oral hearing before this court cannot amount to any valid grounds to challenge the Board’s Decision. 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 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. 21.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 22.The Board laid out its findings of the credibility of the applicant’s claims and evidence in paragraphs 68 to 85 of the Board’s Decision, and it is not necessary to repeat the same here. 23.In gist, the Board gave the benefit of the doubt to the applicant and accepted that his cousin Shaan and Mehwish were lovers and intended to marry despite rejection of the marriage proposal by Mehwish’s family, that Mehwish was killed by her uncle, that Shaan had fled the hometown and never returned, and that despite the passage of almost 13 years since the relationship and since the killing of Mehwish, her family might still feel a need to punish and harm Shaan, and therefore Mehwish’s family continued to seek him out, but without success. The Board further accepted that the applicant might be perceived as being close to Shaan and Mehwish’s family might have suspected that the applicant would know where Shaan was hiding. 24.However, based on all the evidence before it, the Board did not accept that (1) Mehwish’s family would have patiently waited some 9 years or so before commencing what the applicant referred to as “disturbing” him or his family; (2) Mehwish’s family, or anyone else, held a genuine intention to put their threats into action; (3) the applicant fled to Sarka Village fearing serious or fatal harm; (4) Mehwish’s family learnt of his whereabouts and were going to Sarka Village with an intention to cause the applicant serious or fatal harm; and (5) the applicant was actually located and harmed in Jhelum City by Mehwish’s family at any time. 25.The Board further found that none of the explanations given by the applicant for his failure to seek police protection was credible. While the Board accepted that country of origin information (“COI”) did indicate the problem of corruption and limited resources and other defects with the police service in Pakistan, the Board found that the weight of the COI overall indicated that the police force in Pakistan was willing and able to provide an adequate, albeit imperfect, law enforcement regime. 26.Apart from the findings as summarised above, the Board also found the applicant’s failure to make a non-refoulement claim until after his arrest some 4 months after arriving in Hong Kong undermined the credibility of his claim that he held or holds a genuine fear of facing a real risk of serious or fatal harm if he was returned to Pakistan. 27.Based on all its findings of facts, the Board concluded that the applicant did not face a real risk of harm from Mehwish’s family in general, or from Adnan in particular, or anyone else should he return to Pakistan. 28.Thus, the Board found that the applicant was unable to make out his claims for non-refoulement on all the applicable grounds under the USM. 29.Although the Board did not consider state protection and internal relocation, it was unnecessary to make further findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm, and that the police force in Pakistan was willing and able to provide an adequate, albeit imperfect, law enforcement regime. 30.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). 31.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm upon his return to Pakistan, it is not necessary for the Board to consider internal relocation. 32.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. 33.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. 34.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 35.For reasons aforesaid, the Leave Application is dismissed. Dated the 23rd day of September 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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