Shahid Suleman v. Torture Claims Appeal Board
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HCAL 1897/2024 [2026] HKCFI 5974 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1897 OF 2024 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 22 October 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 15 January 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and the requirements under the Immigration Ordinance, CIDTP[1], BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] had not been fulfilled. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 September 2023 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as both the putative respondents and the putative interested parties. 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 party at all. 6.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 7.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. 8.However, the applicant filed his Form 86 on 22 October 2024, which was more than 9 months after the Board’s Decision (made on 15 January 2024). The applicant was hence late for more than 6 months in making the Leave Application. 9.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 11.A delay of more than 6 months is substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below. 12.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 Leave Application can therefore be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still deal with the Leave Application. The applicant’s case 14.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. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed or seriously harmed by Chaudhry Nadeem Khalim (“Chaudhry”) and supporters of the Pakistan Muslim League (N) (“PMLN”) from his home area (collectively, “his enemies”) as the applicant was a supporter of the Pakistan-Tehreek-e-Insaf (“PTI”). 16.Chaudhry was the elected member of the National Assembly of the PMLN in the applicant’s home area. The applicant considered Chaudhry as his persecutor because Chaudhry was very influential in his area and Chaudhry could mobilise his PMLN supporters to threaten and attack supporters of the opposition party. Disposal on paper 17.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 18.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). 19.The applicant did not state any grounds for his intended judicial review in his Form 86. 20.In his supporting affirmation dated 22 October 2024, the applicant listed 15 general grounds numbered as “(1) to (9)” and “1 to 5” (with ground (4) not numbered and with two grounds both numbered as (6)). He further mentioned in the said affirmation that he feared for his life if he returned to his home country. 21.He also attached a 25-page document to his supporting affirmation with the title “THE GROUND FOR THE APPLOCTION ARE AS FOLLOWS;”. 22.In the said 25-page document, the applicant raised numerous issues and asserted an abundance of general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Director’s and the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those matters and the general grounds were applicable to his own case. 23.Nevertheless, as the applicant was relying on his supporting affirmation and the said document for his intended judicial review, this court will deal with the aforesaid grounds as discussed below. Discussion 24.This court will first deal with the grounds asserted in the applicant’s supporting affirmation. The grounds laid out therein had been used repeatedly by many other non-refoulement claimants. All of them are just general accusations against the Board without any particulars or any regard to the applicant’s own situation. 25.In essence, the applicant asserted 2 sets of grounds in the said affirmation. 26.The first set contained 10 grounds under the headings “IRRATIONALITY”, “PROCEDURAL IMPROPRIETY” and “PROCEDURAL IMPROPRIETY / UNFAIRNESS”. He challenged the Board for failing to consider state acquiescence, make sufficient inquiry, provide adequate reasons for its decision, investigate into country of origin information (“COI”) of Pakistan, place weight on relevant information, consider a consistent system of human rights violation, consider if state protection existed in Pakistan, and call for psychological or psychiatric reports. He also challenged the Board for selectively placing weight on irrelevant information, placing weight on irrelevant matters, inaccurate or incorrect facts, and applying the incorrect standard of proof. 27.In the second set of 5 grounds, the applicant mentioned that there was no reasonable basis for rejecting the credibility of his claim, and the failure to consider the extended form of state acquiescence and the COI reports in assessing his risk. He also mentioned that there was irregularity of the decision maker being a different person than the interviewing officer. He further complained that there was no proper basis for consideration of internal relocation. 28.Finally, he added in handwriting that “MY LIFE FEAR IF I RETRUN MY HOME COUNTRY MY LIFE RISK OR RECEIVING DEATH.” This court takes it to mean that he feared for his life if he returned to his home country. 29.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”. Thus, such general allegations cannot help the applicant at all. 30.The applicant did not specify how the Board had failed to consider state acquiescence, make sufficient inquiry, provide adequate reasons for its decision, investigate into COI of Pakistan, and consider if state protection existed in Pakistan. 31.In stark contrast to the applicant’s assertions as aforesaid, the Board had referred to very extensive and fully-referenced COI of Pakistan, which were relevant to the applicant’s circumstances, in paragraphs 41 to 45 & 57 to 59 (where the Board assessed the availability of state protection to the applicant) and paragraphs 62 to 63 (where the Board assessed the viability of internal relocation for the applicant) of the Board’s Decision. 32.In relation to the applicant’s assertion that the Board had failed to make sufficient inquiry or provide adequate reasons for its decision, this court notes from paragraph 36 of the Board’s Decision that the Board had given the applicant the opportunity to lay out all aspects of his claim at the Board’s hearing, provided its analysis of the applicant’s claim in paragraphs 37 to 40 of the Board’s Decision, and set out its assessment of the applicant’s claims against each and every applicable ground under the USM in paragraphs 46 to 55 of the Board’s Decision. It is this court’s view that the Board had conducted sufficient inquiry and had provided full and justified reasons in dismissing the applicant’s appeal/petition. 33.The applicant did not state which pieces of materials that the Board relied on were irrelevant, inaccurate or incorrect, or which pieces of relevant information or material the Board ought to have put weight on. Contrary to the applicant’s assertion, this court finds that the Board had clearly referred to COI materials which were generally update, fully-referenced and focused on the circumstances of the applicant in its assessment of the applicant’s claim. 34.The applicant challenged the Board for having failed to consider a consistent system of human rights violation in Pakistan. However, the applicant’s non-refoulement claim was based on his fear of harm from a specific person namely Chaudhry, and PMLN supporters in his home area due to his own affiliation with the PTI only. It was never his case before the Board that his fear of return was due to a consistent system of human rights violation in Pakistan. 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 (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090). 35.Thus, the applicant’s allegation that the Board had failed to consider a consistent system of human rights violation in Pakistan is totally irrelevant. 36.Furthermore, even if there were in fact a “consistent system of human right violations” in Pakistan, such violations per se would not in any way constitute a sufficient ground for determining that the applicant would be in danger of being subjected to torture upon his return. It has to be shown that he would be personally at risk (see Re RS, CACV 206/2012, para 59). 37.The applicant’s complaint that the Board had failed to call for psychological and psychiatric reports cannot help him either. It is not a must for the Board to call for such reports when it was not raised by the applicant at the appeal stage and the Board did not find it necessary to do so in its assessment of the applicant’s appeal/petition. 38.The applicant did not state how the Board had applied the incorrect standard of proof either. Contrary to the applicant’s assertion, this court notes that the Board was clearly aware of the standard of proof to be applied for its assessment of the applicant’s non-refoulement claim and appeal/petition (see paragraphs 33 to 34 of the Board’s Decision). This court is also satisfied that the Board had correctly applied the said standard. 39.Thus, all the matters that were raised under the first set of 10 grounds in the applicant’s supporting affirmation cannot amount to any valid ground to challenge the Board’s Decision. 40.With regards to the remaining five grounds which were numbered differently from the first set of grounds, the applicant mentioned that there was no reasonable basis for rejecting the credibility of his claim and there was failure to consider the extended form of state acquiescence and the COI reports in assessing his risk. 41.As aforesaid, the Board had given full and justified reasons in dismissing the applicant’s appeal/petition in paragraphs 37 to 40 and paragraphs 46 to 55 of the Board’s Decision. It was the Board’s finding, with which this court agrees, that there was no reason that the applicant merely being a supporter of PTI would be at risk of harm from Chaudhry, whom the applicant had never even met. The Board found no evidence that the applicant was attacked for his support of PTI. The applicant’s speculation that he was targeted for his political opinion as a mere PTI supporter was not supported by cogent evidence. Thus, the Board found the applicant’s claim to be exaggerated and incredible, and even if his evidence was accepted, the risk of harm from Chaudhry, whom the applicant knew only by name, was far-fetched and incredible. 42.As can be seen from the Board’s Decision, the issue of state acquiescence (or the extended form of it) was not specifically raised by the applicant nor addressed by the Board. However, it is evident that the Board was fully cognizant of the principal of surrogacy on state protection (see paragraph 35 of the Board’s Decision). Coupled with the Board’s finding that the applicant was at no real risk of harm from his claimed perpetrator, ie Chaudhry and PMLN supporters in his home area, it was not necessary for the Board to explore if the element of state acquiescence arose in the applicant’s case. 43.In the second set of grounds under point 4 in the applicant’s supporting affirmation, the applicant also mentioned that there was irregularity of the decision maker being a different person than the interviewing officer. However, the applicant did not even mention which decision maker or which stage of the assessment of his non-refoulement claim he was actually referring to. 44.Nevertheless, if he was referring to the Director’s Decision, his allegation was simply untrue. The interviewing officer was the same person acting for the Director in assessing the applicant’s claim and the one who signed the Director’s Decision. 45.If the applicant was referring to the Board’s Decision, the setting up of the Board as a second tier of assessment, with members who are all legally-trained professionals, is a safeguard for non-refoulement claimants. The Board’s duty was to assess the applicant’s claim afresh. Hence, it is only logical that the Board member who determined the applicant’s case should be a different person from the interviewing officer. 46.With regards to his complaint under point 5 in his supporting affirmation that there was no proper basis for consideration of internal relocation, the Board had laid out full reasons, with supporting information from COI, in paragraphs 61 to 63 of the Board’s Decision for its conclusion that internal relocation was a feasible option for the applicant. This court finds nothing wrong in the Board’s reasoning in this regard. 47.Thus, all the applicant’s assertions in the second part of his supporting affirmation were without substance. 48.As to the applicant’s allegation at the end of his supporting affirmation that his life would be at risk if he returned to his home country, his danger in his country had already been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 49.This court now turns to deal with the applicant’s assertions as contained in the 25-page document with the title “THE GROUND FOR THE APPLOCTION ARE AS FOLLOWS;” that was annexed to his supporting affirmation. 50.In the said document, the applicant raised numerous issues and asserted an abundance of general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. 51.The matters contained therein were not in proper sequence. Some parts of the contents were repeated. For ease of discussion, this court will classify the matters raised into 9 categories as follows:-
52.As summarised above, the applicant cited a number of benchmark cases on non-refoulement claims, listed an extract of the Hong Kong Bill of Rights and provisions of international conventions, including the Convention Against Torture, and ICCPR etc, included questions from what appeared to be from some human rights organizations to the Director post the Ubamaka decision, and inserted some internet links including YouTube links and Facebook links in the said document. 53.However, the applicant did not give any particulars as to how those benchmark cases, the Hong Kong Bill of Rights, the Convention Against Torture and ICCPR etc, the websites, YouTube links, Facebook links and the questions from what appeared to be from some human rights organizations to the Director post the Ubamaka decision were related to his own case, or could otherwise be used as grounds for his intended judicial review. 54.Thus, categories (1), (2), (3), (6) and (7) of the grounds contained in the said 25-page document as summarised above cannot be arguable grounds for the intended judicial review. 55.In categories (4) and (5) of the grounds as summarised above, the applicant included what appeared to be the court’s decisions of other non-refoulement claimants, which included their grounds for judicial review; and among these grounds, the complaints about the lack of a hearing or a fair hearing, and the lack of language and legal assistance; and an abundance of general grounds used by many other applicants in their applications for leave to apply for judicial review against the Director’s and the Board’s decisions. 56.Most of the general complaints, such as the Board’s failure to consider state acquiescence, COI, relevant information, the applicant’s fear, and a consistent system of human rights violation etc, have already been addressed earlier in this decision. 57.As to his complaints that were directed at the Director about the Director’ Decision, 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 consider only those grounds directed at the Board in respect of the Board’s Decision. Hence, all the allegations against the Director’s Decision could not be used to challenge the Board’s Decision and can simply be ignored. 58.The applicant’s complaint about the lack of hearing or a fair hearing is simply not true. In assessing the applicant’s appeal/petition, the Board held a hearing on 29 December 2023 and the applicant was present. He was therefore given an opportunity to present his own case and whatever evidence he might have to the Board in person. 59.In respect of the applicant’s allegation that there was a lack of legal and language assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation. 60.Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). 61.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all. 62.Among the general grounds that appeared in category (4) and (5) as summarised above, the applicant also complained that the Board’s Decision was wrong, unreasonable and irrational. However, he failed to state why or how the Board’s Decision was as he described, or how the Board erred in its assessment of his own non-refoulement claim. 63.This court therefore finds that all the general accusations that were summarised as categories (4) and (5) could not amount to any valid grounds for the intended judicial review (see Re Mizan Sikder, supra; Re Aziz Nasir, supra; Re Kharsu Numan, supra, and Re Salim Ahmed alias MD Salim, supra). 64.In category (8) as summarised above, the applicant made some accusations of mistreatment by immigration officers and officers of CIC. While there is nothing before this court to verify the truthfulness of such allegations, it is also not for this court to investigate into such matters when this court is dealing with the Leave Application. If indeed the applicant was aggrieved by the alleged mistreatment, he could and should have complained to the Director and/or other authorities. 65.Thus, category (8) is irrelevant to the applicant’s intended judicial review against the Board’s Decision. 66.At the end of the document and summarised as category (9) above, the applicant seemed to complain that the decision makers disrespected and discriminated him. 67.His alleged disrespect and discrimination by the decision makers contained no details whatsoever. Thus, they cannot be any valid ground for challenging the Board’s Decision. 68.Having carefully considered the matters mentioned in the applicant’s 25-page document, this court finds nothing therein constituted any valid ground to challenge the Board’s Decision. 69.The applicant has therefore failed to establish any valid ground for challenging the Board’s Decision both by way of his supporting affirmation and his 25-page document annexed to the said affirmation. 70.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). 71.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. 72.As aforesaid, the Board held an oral hearing on 29 December 2023 in assessing the applicant’s appeal/petition. The applicant was present and was given the chance to present his case to the Board in person. 73.The Board had provided a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection. 74.In short, after due consideration of the applicant’s claims and evidence, the Board concluded that the applicant’s fear of his enemies was speculative and was not well-founded. His claim of his being a target of PMLN was extremely weak and unbelievable. The extent of the applicant’s injuries as a result of the single occasion of assault, where he could not identify the attackers and the intention of the attackers was not known, was clearly not serious enough to be considered severe. 75.Moreover, the Board found that even if his claim of risk from the PMLN members at his home area was accepted, should he relocate to other cities in Pakistan, he would not be harmed by the PMLN supporters from his home village area. Internal relocation was a good option for the applicant should he feel that there was a risk for him to return to stay at his home village. 76.As mentioned above, the Board had gone through very extensive COI in its determination of the applicant’s claims. Based on the country information and the applicant’s circumstances, the Board concluded that there were sufficient safeguards established by the state of Pakistan in the unlikely event that the applicant required state protection on his return to the country. 77.Thus, the Board did not accept that there was a real and personal risk that the applicant would be subjected to harm from Chaudhry and the PMLN supporters in his home area upon his return to Pakistan. 78.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 79.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. 80.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. 81.Last but not least, the applicant’s grounds were presented in such a messy, voluminous and repetitive manner, let alone being wholly unmeritorious and irrelevant to his own case. Such a practice should be reprimanded. As held in Ho Loy and Another v Director of Environmental Protection, supra, “What is required, in a proper Form 86, is to state the grounds of judicial review clearly, succinctly and in a few numbered paragraphs.” Thus, irrespective of whether the grounds of judicial review were prepared by legal practitioners or litigants in person, they should be stated in a clear and succinct manner with proper numbering for the paragraphs. There was absolutely no excuse for the applicant to present the grounds in the way he did, which, in this court’s view, is an abuse of the court process. Conclusion 82.For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 28th day of October 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
Form CALL-1 [1] Cruel, inhuman or degrading treatment or punishment. [2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [5] ICCPR generally refers to the International Covenant on Civil and Political Rights [6] Ubamaka Edward Wilson v. Secretary for Security and Another (21/12/2012, FACV15/2011) (2012) 15 HKCFAR 743 [7] CIC usually refers to Castle Peak Bay Immigration Centre in non-refoulement claims |
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