SHAUKAT MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3528/2019

[2025] HKCFI 4430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3528 OF 2019

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 the applicant being absent in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 November 2019”.

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 27 November 2019 and filed on 28 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of “the decision of torture Claim Appeal Board and immigration department (8-11-2019)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 8 November 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 July 2019 (“the Director’s Decision”).  Thus, it is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003528_2019_files/the_Board's_Decision.pdf

3.  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”).  Thus, the Board rejected the applicant’s non-refoulement claim and confirmed the Director’s Decision.

Amendments 

4.  In Form 86, the applicant named “Torture Claim Appeal Board” and “immigration department” as both the putative respondents and the putative interested parties, when the putative respondent should only be the Board and the putative interested party should only be the Director.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

6.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.  Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 8 November 2019”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection as he feared that if refouled to Pakistan, he would be harmed or killed by members of the Shia branch of Islam because of religious reason.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 6 August 2025.

10.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

11.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 28 November 2019.  The applicant merely stated in the affirmation that he did not agree with the Board’s Decision, he could not go back to his home country and his life would still be in danger over there.    

Discussion

14.  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).

15.  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 specific ground being advanced by the applicant for the intended judicial review.

16.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 22 October 2019 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

17.  As can be seen from the Board’s Decision, the Board gave detailed analysis of the applicant’s case and found the feared ill-treatment was unlikely to materialise.

18.  The applicant’s problem with the Shia stemmed from his objection to their setting up an office in his neighbourhood.  The two incidents that led to the applicant’s flee from Pakistan were discussed.

19.  In Incident 1, the applicant’s cousin, Waheed, “thought” that 2 men “might” cause danger to the applicant and advised him to use another route to return home after visiting a shopping centre.  The Board found that Waheed was not positively certain that the two men would cause danger to the applicant.  There was nothing to show that the two men knew the applicant had gone shopping in the shopping centre, he would return home by using the road they were waiting, and that they were waiting there in a bid to attack him.  They were just ordinary persons standing there on the roadside with a motorbike.  The scenario could not constitute a plan that the two men were going to attack the applicant whilst he went past the route.

20.  In Incident 2, the applicant could not tell that the two men were waiting there to attack him either.  There was simply no basis for him to assert that they were waiting on the roadside for the purpose of attacking him.

21.  Significantly, the applicant applied for his passport and it was issued to him prior to the occurrence of Incident 2.  This contradicted with the applicant’s allegation that he sold his house and made the application for his passport after Incident 2 and after his sister told him that non-refoulement claim in Hong Kong could save his life.

22.  The Board thus found that the applicant was not facing any risk of harm from the two men.  His only feared ill-treatment was built upon his fear of those two men.  Such fear was totally unfounded and hence his case could not stand.

23.  Further, the Board found that the applicant’s fear from the Shia was private in nature.  There was nothing to show that they were public officials or persons acting in official capacities.  In respect of the refusal by the police to register his complaint, it was because the applicant did not seek assistance from the higher level of the police administration or other authorities.  The Pakistani government was not aware of his situation, and therefore could not offer him assistance.  There was therefore no acquiescence on the part of the state.  The applicant’s case fell outside the definition of “torture” as defined under Section 37U(1) of the Immigration Ordinance.  The applicant’s case had nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  Hence, his case fell outside the ambit of persecution as well.

24.  For the same reason, the Board found that the applicant did not face a real risk of harm or ill-treatment on all the applicable grounds under the USM.

25.  Thus, the applicant’s alleged danger to his life upon return to his home country had been duly considered but rejected by the Board.

26.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

27.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

29.  The assessment of evidence 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.

30.  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. 

31.  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

32.  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

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