YAHYA MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1682/2025

[2026] HKCFI 2427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1682 OF 2025

Application for Leave to Apply for Judicial Review

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

Following:

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

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Pakistan who arrived in Hong Kong on 6 January 2024 as a visitor with permission to remain as such up to 11 January 2024 when he did not depart and instead overstayed, and was arrested by police on 5 June 2024.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Farooq Ganj Colony, District Shaikhupura, Punjab, Pakistan.  After leaving school he ran a drugs store and supported PTI regularly attended their local meetings and activities in his home district without holding any official post in the party.

3.  In June 2022, certain local PML(N) supporters started to harass and intimidate him, and after one occasion when he was attacked by those PML(N) supporters while on his way to his store, and while he managed to escape without serious injuries, he became fearful for his safety and in August 2022 fled to Islamabad, and from there he departed Pakistan for Thailand where he stayed in a friend’s place for more than one year before returning to November 2023.

4.  However, as the threats from those local PML(N) supporters had persisted, the Applicant decided that it was not safe to remain in Pakistan, and so on 1 January 2024 he again departed for Thailand, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 August 2024 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 6 December 2024, 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”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no real and foreseeable risk that he will be seriously harmed or killed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to specifically target him given that he was just an ordinary PTI supporter without holding any official post in the party, that in any event in the absence of any official involvement that state or 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 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.  On 19 December 2024, 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 25 February 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 July 2025, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found no reliable evidence of any real intention of those local PML(N) supporters to seriously harm or kill him or to have any political reason to specifically target him for harm given the fact that he never held any official post in PTI, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 25 July 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Board was in breach of procedural fairness for unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)   That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)   That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)   That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated that resulted in its groundless speculations that it is safe for him to return to his home country;

(6)   That the Adjudicator reached the wrong decision by just rejecting the Applicant’s claim without carefully understanding his situation;

(7)   That the hearing bundle was given to the Applicant just a few days before the appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal or to arrange for the translations of those documents.         

10.  These are however all just 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 evidence is there to suggest that the hearing bundle was given to him late or that he was not given sufficient time to prepare for his hearing or to arrange for translation of those documents in English when the Applicant never raised any such issues to the Board during his appeal hearing at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  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.

14.  Moreover, the Applicant has recently on 4 March 2026 filed an affirmation requesting to withdraw his application as his issue in his home country has been resolved that it is now safe for him to return to Pakistan.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his 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