MUHAMMAD ASHFAQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2116/2025

[2025] HKCFI 5432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2116 OF 2025

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;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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 16 September 2025 and filed on 18 September 2025, 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 16 July 2025 (“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/2025/HCAL002116_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims 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 7 January 2025, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondents, when only the Board should be so named.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

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 feared being ill-treated or even killed by the Pakistani authorities, as he belonged to Jammu Kashmir Liberation Front (“JKLF”). He also claimed to be in fear of the “army”, but not any one of the authorities (for example, the police, the intelligence agency etc) or any one in particular.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 6 November 2025.

9.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the document with the title “Grounds on which Relief is Sought” annexed to his Form 86 and in his 10-page handwritten letter dated 22 October 2025. However, when this court invited the applicant to elaborate on the grounds, he did not elaborate any of them.

10.  The applicant merely said that he had further evidence to produce, including a USB and some media reports about some chaotic events and protests in Kashmir, which occurred in September 2025. He claimed that although he was not present there, those events might affect his rights. He therefore asked this court repeatedly to give him time to submit the evidence.

11.  The applicant also sent another letter dated 31 October 2025 to this court requesting to play a USB which contained some evidence that would give a real prospect of success to his application. He mentioned about the USB at the hearing as well.

12.  However, as explained to the applicant by this court at the hearing, it is not for this court to receive new evidence in a judicial review (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090).

Grounds for judicial review

13.  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).

14.  Some of the grounds contained in Form 86 and the letter dated 22 October 2025 (ie ground [1] to the first half of ground [7]) were the same. It is clear that the applicant had copied the contents of the document attached to his Form 86 to his letter dated 22 October 2025.

15.  The other contents of his letter dated 22 October 2025 (ie up to ground [18]) were in fact a combination of the grounds commonly 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.

16.  Likewise, the first 18 grounds as contained in the applicant’s letter dated 22 October 2025 contained only general allegations without any regard to his own situations. They included allegations that the decisions of both the Director and the adjudicator of the Board were wrong, unfair, unreasonable and irrational as required by the Wednesbury test; that the Director and the Board had placed too much reliance on country of origin information (“COI”) and disregarded their personal background and experience; that the adjudicator was procedurally improper and unfair; that the adjudicator failed to consider state acquiescence and a consistent system of human rights violation; that the adjudicator failed to make sufficient inquiry on COI and to provide adequate reasons in his decision; and that the Director or the Board failed to call for psychological/ psychiatric reports; etc.

17.  In the remaining ground which was numbered as ground [19] in his letter, the applicant complained that his claim was finalized by the Director and the adjudicator in a short period of time. The applicant stated that he was serving sentence at the material time and had requested the Director through his duty lawyer to give him time to provide supporting documents and evidence at the screening interview, but he was told that he could present all the evidence and supporting documents to the Board during his appeal.

18.  The applicant alleged that the Board did not give him time and set a date for hearing his appeal. He was not allowed to use his phone or make phone calls when he was serving sentence and he did not have friends or family to help him. The evidence he was holding were all thrown away by his landlord. He claimed to have evidence such as police FIR, torture picture and video footage which could show that he was tortured by the police and his enemies.

19.  The applicant further stated that there was conflict going on in Kashmir which could be verified by global news that showed how political parties have been tortured by the agencies and military in Pakistan as they were “the freedom fighter of JKLF Libration Party”.

20.  At the end of the letter, he asked this court to give him sufficient time to collect evidence from Pakistan and submit the same. As aforementioned, the applicant also said at the oral hearing that he had further evidence to produce and asked this court to give him time to submit evidence.

21.  Although the first 18 grounds that were asserted in the applicant’s letter were general accusations without specificity, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

22.  First of all, the applicant alleged in ground [19] that he had more evidence to submit. However, as explained to him at the oral hearing, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board, supra, 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.

23.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

24.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

25.  Moreover, this court notes from the Board’s Decision that the applicant had never claimed to have any First Information Report (“FIR”) issued against him, and he had never been injured, not to mention tortured, by his enemies, even at the only “Detention” incident in 2006 when he was allegedly captivated and detained for two hours against his will.

26.  If the “FIR, torture picture and video footage” that he claimed to have and wanted to submit as evidence were not related to himself, the general situation of violence in Pakistan is irrelevant. As the Board had correctly decided, the applicant must be personally at risk to entitle him to non-refoulement protection. Thus, evidence that cannot support him being personally at risk cannot help him to substantiate his non-refoulement claim.

27.  As mentioned, the applicant did not elaborate on any of the 18 grounds put forward in his letter dated 22 October 2025, which included the same grounds asserted in his document attached to his Form 86.

28.  Some of the grounds were directed at the Director. As 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), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

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”.

30.  The applicant complained that the Board’s Decision was wrong, unfair, unreasonable and irrational as required by the Wednesbury test. However, he failed to state how or why it was so.

31.  The applicant also complained that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was unreasonably required to answer.

32.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

33.  His accusation that the Board had placed too much reliance on COI and disregarded his personal background also lacks specificity. The applicant failed to indicate what personal background and experience of his had been disregarded. Contrary to the applicant’s assertion, this court finds that the Board had considered his personal background and experience very extensively, especially in relation to his involvement in JKLF which he alleged was the reason why he was wanted and persecuted by the Pakistani authorities.

34.  Similarly, his accusations that the adjudicator was procedurally improper and unfair; that the adjudicator failed to consider state acquiescence and a consistent system of human rights violation; that the adjudicator failed to make sufficient inquiry on COI and to provide adequate reasons in his decision, etc, were advanced without any particulars.

35.  Contrary to the applicant’s assertion that the Board did not make sufficient inquiry on COI and failed to consider consistent system of human rights violation, etc, this court notes that the Board had discussed the general situation of violence in Pakistan, and had gone through extensive, fully-referenced COI with the applicant and also invited the applicant to comment on them. The applicant’s accusations in this regard are simply unfounded. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

36.  The last general accusation that the Board failed to call for psychological/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.

37.  Thus, none of the accusations in the first 18 grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

38.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

39.  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, supra).

40.  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.

41.  In assessing the appeal by the applicant, the Board held an oral hearing on 22 May 2025. The applicant was present and was given the chance to present his case to the Board in person.

42.  The Board had in fact 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.

43.  The Board noted that the applicant did not adduce support for many material aspects of his claim. The applicant’s assertion that there was a reasonable degree of likelihood that he would be persecuted if refouled to his own country only rested on bare and unsupported allegations. There was no severe bodily harm inflicted on the applicant over various incidents by his enemies or the police at all. In fact, the applicant told the Board that throughout his claim, he was never harmed or injured by his enemies. Having considered all circumstances as alleged, the Board opined that the ill-treatment on the applicant had not attained a minimum level of severity.

44.  Significantly, the Board did not accept that the applicant was a member of JKLF since 2006, or had been a committee member of Awami Action, the sub-office of JKLF, in 2023 as claimed. Further, the Board found that even if the applicant was a member of JKLF since 2006, the evidence showed that he was merely a grass-root level member to the party. The evidence adduced showed that a grass-root member of JKLF would have been unlikely to give rise to a well-founded fear of persecution from the authorities. More importantly, JKLF was no longer a terrorist group, and was not sought against by the state of Pakistan at present. The applicant in fact confirmed and agreed so at the Board’s hearing and conceded with the Board that JKLF was now safe against his state Pakistan.

45.  As mentioned, the Board found that the applicant was not injured at all in the only “Detention” incident. There was no evidence to show that the people who detained the applicant and others were from the police or authorities in Pakistan. Further, if the people who detained him had the real intention to harm or kill him, they had ample opportunity to do so in the two hours of detention, but they did not.

46.  As to the applicant’s claimed fear from the general situation of violence in Pakistan, although the Board accepted that there were ongoing political conflicts between JKLF with the authorities, there was no specific ground showing that the applicant would be personally at risk.

47.  Thus, the Board found no, or no reliable evidence to show that: (1) there was state acquiescence; (2) the alleged perpetuators had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance; (3) the applicant had a well-founded fear or persecution for any Convention reasons; (4) the treatment he received attained a minimum level of severity; (5) the applicant faced a real risk or danger against his life upon refoulement; and (6) the state of Pakistan was unwilling or unable to afford protection to the applicant.

48.  The Board concluded from extensive COI that reasonable state protection was available to the applicant should he need it.

49.  Based on the findings as summarized above, the Board considered that it was not necessary to make findings on internal relocation for the applicant. Nevertheless, the Board had explicitly stated that for the sake of completeness, it was assessed that internal relocation alternatives to other areas in Pakistan, such as Karachi and Multan, were effective in lowering the perceived risks. The applicant, being an able-bodied adult with 9 years of formal education and many years of work experience, could earn a living in other areas of his home country. Hence, the Board considered that internal relocation was appropriate and reasonable.

50.  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.

51.  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.

52.  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

53.  For reasons aforesaid, the Leave Application is dismissed.

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