MUHAMMAD AMJAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 15/2022

[2026] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 15 of 2022

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The Form 86 be amended by naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as the putative interested party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 6 January 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following decisions:

a.   The Decision of the Director of Immigration (the “Director”) dated 30 June 2021[1] (the “Imm Decision”);

b.   Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 22 December 2021 (the “Board’s Decision”).  In the Board’s Decision, the Board rejected the Applicant’s appeal against the Imm Decision.  

2.  In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision.  

3.  The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para. 45.  Thus, I treat the Leave Application to cover the Board’s Decision only.  

4.  In the Form, the Applicant named both the Director and the Board as the respondents, and the Board as the interested party.  I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the putative interested party.  

5.  The Applicant requested an oral hearing for the Leave Application, which took place on 27 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that his life is still unsafe in Pakistan.  He will return to Pakistan once his issue there is settled.  

Background

6.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[2] for reference.

Discussion

7.  In the Affirmation, the Applicant raised various grounds in support of his Leave Application, I will summarise them below:

a.   The Board made its decision based on another applicant’s situation;

b.   The Board dismissed Applicant’s appeal without any valid reason.  It erred in paragraphs 32‑33;

c.   The members of the Shia Sect of Islam (the “Shia People”) threatened to kill him.  If the Applicant returns to Pakistan, they will kill him;

d.   There is no difference between bandage and plaster in the Applicant’s language; and

e.   The Applicant went to the hospital in Peshawar.  He did not know the name of the hospital and he was in pain.  He chose to go to the hospital in Peshawar because he thought it would be safer.  He did not get full treatment in Jennai Hospital.  

8.  The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

9.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

10.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s situation, including his evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that the Applicant’s case about the 3 incidents of assault and the Shia People’s threats to him were not believable.  Further, there is no evidence to suggest that the Shia People in the Applicant’s local area would be so powerful as to be able to locate him throughout Pakistan.  The Board also found that there is no evidence to show that the Pakistani Government would side with the Shia People to harm the Applicant: see the Board’s Decision paras. 22-39.  In addition, the Board considered that there were internal relocation options available to the Applicant if the issue of relocation arises: see the Board’s Decision paras. 61-63.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[3] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras. 40-64.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision, whether in paragraphs 32-33 of the Board’s Decision or otherwise.

11.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

12.  For the reasons stated above, I will dismiss the Leave Application.

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