MOHAMMAD FAROOQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2167/2025

[2026] HKCFI 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2167 OF 2025

Application for Leave to Apply for Judicial Review

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

Following:

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

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 54-year-old national of Pakistan who first arrived in Hong Kong in November 1990 to join his wife who was also of Pakistan origin but a permanent resident of Hong Kong, and with permission to stay under her dependent visa renewable annually subject to conditions, but during his stay in Hong Kong he had been arrested on various occasions for criminal offences including theft and attempted burglary, and for which he had served prison terms ranging from 2 months to 3 years, and upon his discharge from his last prison term in November 2015, and with the extension of his expired dependent visa refused by the Immigration Department, a deportation order for life was made against him on 28 November 2016 by the Director of Immigration (“Director”), whereupon he raised a non-refoulement claim for protection but which he subsequently drew and was then detained at the Castle Peak Bay Immigration Centre (“CIC”) pending deportation, but after his wife passed away in January 2025, he then raised another non-refoulement claim on the basis that if he returned to Pakistan he would not be able to survive alone without the care and support of his deceased wife or his children who are all permanent residents in Hong Kong.

2.  The Applicant was born and raised in Parhal, Chakwal District, Punjab, Pakistan. He never received any formal schooling and worked as a farmer in his home village, and on 22 July 1990 he married his wife who was also his cousin in Pakistan and a permanent resident in Hong Kong, and on 26 November 1990 at the age of 19 years old he arrived in Hong Kong to join his wife based on her dependent visa renewable annually, and together they raised a family with 4 children all born in Hong Kong and are Hong Kong permanent residents.

3.  During his 30 years in Hong Kong the Applicant worked as a general labourer to support his family, but as noted above he had also been arrested for the following offences:

(a)  5 July 2002 arrested for theft, convicted on 18 December 2003 and sentenced to prison for 4 months;

(b)  28 July 2003 arrested for theft, convicted on 12 February 2004 and sentenced to prison for 2 months;

(c)  30 December 2012 arrested for attempted burglary, convicted on 23 October 2013 and sentenced to prison for 3 years.

4.  Upon his discharge from prison for his last conviction, the Director on 28 November 2016 issued a deportation order for life against the Applicant, whereupon he raised a non-refoulement claim for protection on the basis that one of his sisters had been murdered in Pakistan that he also feared of meeting the same fate if refouled to Pakistan, but which he subsequently withdrew on 13 September 2023 as his wife and children had agreed to accompany him to return to Pakistan.

5.  However, on 14 January 2025 his wife passed away in Hong Kong, and on the following day on 15 January 2025 he raised another non-refoulement claim on the basis that being illiterate and getting old and without the support of his wife or his children that he would not be able to find any job or to survive by himself alone in Pakistan where he had not lived for years and no longer has any close relatives for support, and for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2025 and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 22 April 2025 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of him not being able to survive alone in Pakistan upon his return as low due to the absence of any past ill-treatment from anyone in his home country, that there is no evidence to suggest that his perceived risk of failing to survive alone in Pakistan is real and/or imminent, that since his marriage to his wife and his residence in Hong Kong that he had returned to Pakistan on several occasions without any incidents and that during which he had had no problem living there, that he is an Pakistani national and is entitled to all the rights benefits and supports available to any citizen that it is not accepted that he will have any difficulty surviving in his home country, that in any event state and police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 252 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to any areas of the country including his home district or in large cities such as Rawalpindi or Faisalabad without any of his perceived risk in Pakistan.

8.  On 6 May 2025 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 June 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 June 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found on the basis of the Applicant’s claim of fear of not being able to survive alone in Pakistan upon refoulement that he has no enemy of any sort in Pakistan or any issue with the Pakistani government that there is simply no fear or risk of any harm or persecution against him in Pakistan, that his fear of living in Pakistan alone without persecution or any family support is not a risk entitled to non-refoulement protection under any of the applicable grounds, and in any event according to relevant COI that as a Pakistani national that state and police protection would be available to the Applicant upon his return to Pakistan if resorted to as well as financial support and assistances from various governmental departments and NGOs to meet his needs, and that it is open to him to move safely back to his home district or any other parts of the country such as Faisalabad or Rawalpindi where it is not unduly harsh for the Applicant as an able-bodied adult with vast working experience to reside without any of his perceived risks that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 26 September 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he puts forward the following grounds for his intended challenge:

(1)  That the Board in its decision showed no sufficient interest in the subject matters of the Applicant’s claim to satisfy the requirements under Order 53 rule 3 (7) of the Rules of the High Court, Cap 4A;

(2)  That the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that his right to life must be protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(3)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(6)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(7)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(8)  That the Board failed to provide adequate reasons for its decision;

(9)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational;

(10)  That the Board failed to consider a consistent system of human rights violations in Pakistan;

(11)  That there is procedural impropriety in the Board’s failure to call for psychological and psychiatric reports or evaluation on the Applicant’s case;

(12)  That there is procedural impropriety in that the Board failed to apply the correct standard of proof;

(13)  That there is irregularity of the decision maker being a different person than the interviewing officer;

(14)  That there is no proper basis for the Board’s consideration of internal relocation in its assessment of the Applicant’s claim.             

11.  These are however all some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was his fear of not being able to survive living in Pakistan by himself alone without the support of his deceased wife or his children only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant in his Form or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

13.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, of which the Board was in my view correct to find not a risk entitled to non-refoulement protection under any of the applicable grounds, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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