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HCAL 1714/2021
[2026] HKCFI 3418
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1714 OF 2021
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BETWEEN
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Ahsan Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. 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 and filed on 17 December 2021, 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 1 December 2021 (“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/2021/HCAL001714_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hon Kong on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 October 2019 and confirmed the same, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, his life would be in danger due to his love affair with a girl named Naila. The applicant claimed that their relationship was culturally unacceptable and Naila’s family verbally threatened him, and then framed him in a false case, using their influence and political connections. The applicant was detained by the police for 3 days as a result. When the applicant continued to see Naila, he was attacked by Naila’s brother and his friends.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 June 2026.
6. When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had threats and danger. He in fact confirmed that there was nothing wrong with the Board’s Decision, save that the Board refused his case. He said he was scared to go back as his enemies were powerful people.
Grounds for judicial review
7. 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).
8. However, the applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 17 December 2021.
9. What the applicant said at the oral hearing could not amount to any valid ground to challenge the Board’s Decision. In fact, the applicant admitted that there was nothing wrong with the Board’s Decision.
Discussion
10. First of all, the applicant’s threats and danger upon returning to his country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
11. 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).
12. Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
13. This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing. The Board had given detailed reasons for not having an oral hearing in paragraphs 29 to 31 of the Board’s Decision. In gist, the Board accepted the factual basis of the applicant’s claims without reservation. Moreover, the applicant was put on notice in the Board’s letter of 4 August 2021 that the issue of relocation would be a key issue in the Board’s consideration of his appeal/petition, and he was invited to provide further comments in relation to the issue. The applicant did not avail himself of the opportunity. The Board was satisfied that there was no injustice in proceeding to determine the matter without a hearing, as it considered that the applicant had had a full opportunity to present his case, including the opportunity to provide comments on the key dispositive issue of relocation.
14. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).
15. Thus, it was not a must for the applicant to have an oral hearing before the Board. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the Board accepted the factual basis of the applicant’s claims without reservation. Thus, the high standards of fairness required for the determination of the applicant’s appeal/petition was not compromised by not having an oral hearing.
16. As aforesaid, the Board accepted the applicant’s claims in full when assessing the applicant’s appeal/petition. Nevertheless, the Board considered internal relocation to be a viable option for the applicant to avoid the risk of harm from Naila’s family. The Board had given its full reasons for such a finding in paragraph 34 of the Board’s Decision, and it is not necessary to repeat the same here.
17. In gist, the Board found that the perpetuators of the applicant’s risks were private individuals and not state actors. The applicant had provided no information as to how Naila’s family might locate him anywhere in the country. The applicant was able to avoid the harm he feared during the 12 months that he spent in Rawalpindi before leaving Pakistan. There was no indication that Naila’s family made any attempt to find him. The Board thus concluded that they had neither the means nor the motivation to seek out the applicant and locate him in an area of Pakistan away from his home area.
18. The Board thus concluded that there was no real risk the applicant would face any of the proscribed forms of harm should he return to his home country and relocate to another part of Pakistan where he would not be at risk of harm.
19. The Board was entitled to make the above findings. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 10th day of June 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 10/06/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 10/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16385/19/10/34/P3230
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 570/19 (Formerly as RBCZ 10416/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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