ASAD MUHAMMAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 460/2023

[2026] HKCFI 4288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 460 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

2.  Extension of time to file the application for leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 23 March 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 9 June 2021 (the “Board’s Decision”).

2.  The Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. As the challenge is against the Board’s Decision, it is usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 20 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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[1] for reference. The gist of his claim is that, he will face serious harm if he were to return to Pakistan because he is under threat of serious harm from his wife’s ex-husband, his wife’s family members and their associates for religious and family reasons (the “Adversaries”).

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. The Form 86 was filed late for about 18 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.  On any view, the delay of about 18 months is very serious. No explanation for the serious delay has been provided in the Form 86 and the supporting affirmation. At the Hearing, the Applicant at first claimed that he was in prison at the material time and he was not aware of the Board’s Decision and the need to make the Leave Application. He then claimed that after his wife passed away, he had a girlfriend in Hong Kong who visited him in prison and he wanted to make the application because he wanted to married her. The marriage eventually took place in 2023. I do not accept that the Applicant’s explanation as satisfactory:-

(1)  The Applicant failed to elaborate when and how he found out about the Board’s Decision. There is also no credible evidence to show that there was any delay in the dispatch of the Board’s Decision to the Applicant because he was being detained.

(2)  If anything, he was not precluded from making the Leave Application by reason of his detention as his application papers show that the Leave Application was made whilst the Applicant was detained at Castle Peak Bay Immigration Centre.

(3)  I also do not see how the death of the Applicant’s wife and the Applicant’s subsequent marriage amount to genuine extenuating circumstances, in light of the long period of delay.

8.  On account of the serious delay which is not satisfactorily explained, the Leave Application ought to be dismissed.

9.  In any event, I have also considered the substantive merits of the Leave Application. If the Applicant’s claim is bound to fail, no meaningful purpose can be served by granting leave

Merits

10.  It is trite law that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.

11.  In the affirmation in support of the Form 86, the Applicant set out what appears to be generic grounds of review, it is alleged that:-

(1)  the Board’s Decision was unreasonable and unfair.

(2)  there was a failure to consider state acquiescence.

(3)  The Board has failed to give proper weight to the Applicant’s argument.

(4)  The Board has failed to consider the issue of government corruption and incompetence in Pakistan.

12.  The above grounds are vague and wholly unparticularised. There is no elaboration as to how and why the Board is said to err in a way so as to warrant judicial intervention, for example, the Applicant has failed to identify any underlying facts and circumstances as to how the Board’s Decision is said to be unreasonable.

13.  At the Hearing, the Applicant said he got married here in Hong Kong and asked for more time. I do not see how that assists his application. As held by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§38-50, the Applicant, as a non-permanent resident of Hong Kong, is not entitled to rely on family unity in this type of application by virtue of the reservation for immigration legislation under s.11 of the Hong Kong Bill of Rights Ordinance (Cap 383).

14.  In any event, having rigorously examined the Board’s Decision, the papers 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 all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-

(1)  After undertaking a meticulous analysis of the evidence, the Board was entitled to reject the Applicant’s factual account as incredible, in particular that:-

(a)  Despite claiming that he had been seriously injured in 2007 (defined as the “Second Incident” in the Board’s Decision), the Applicant nevertheless continued to reside in his home village after discharge from hospital. There were also plenty of opportunities for the Adversaries to harm him but nothing eventful had happened (§§25, 35, 72).

(b)  There is also no credible evidence to support the Applicant’s bare assertion that the Adversaries were powerful or had any substantial influence over government officials or politicians (§ §29-33, 40, 55(b)-(c), 56, 91, 106). In fact, the Applicant had admitted that he was never harassed by any government officials or persons acting in official capacity (§86).

(c)  His evidence is also marred by serious inconsistencies, e.g. he has made conflicting accounts as to his past religious beliefs. In his initial representation made on 5 June 2013, he claimed that he changed his sect from Sunni to Shia. However, in his subsequent Supplemental Claim Form, he claimed that he changed his sect from Shia to Sunni. He was unable to provide any satisfactory explanation for the serious discrepancy (§§58, 62).

(2)  Contrary to the Applicant’s argument of lack of state protection:-

(a)  Having regard to relevant COI and the personal circumstances of the Applicant, the Board was entitled to find that reasonable state protection was available to the Applicant notwithstanding the existence of corruption in the authorities (§§89, 95-96). As there is no credible evidence to support the Applicant’s bare assertion that the Adversaries would have the means to pursue him throughout his home country (§§84-86). In fact, it is admitted by the Applicant that he was able to reside safely in Lahore for over a year (§§37-40).

(b)  The Board has in fact considered the issue of state acquiescence in detail and rightly rejected the Applicant’s argument as there was insufficient evidence to show that the law enforcement has failed to such an extent that non-state actors may commit crimes with impunity (§83).

(c)  In any event, I see no reason to disturb the Board’s finding that there is freedom of movement in Pakistan and that the Applicant cannot be easily tracked by the Adversaries after relocation to places such as Karachi or Islamabad. As an able-bodied adult with reasonable education and working experience, reasonable relocation alternatives are available to the Applicant given that Pakistan is a large country with a population of over 200 million people (§§110-118).

15.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success. Hence, I see no reason to grant any time extension.

Conclusion

16.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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