KABIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3530/2019

[2025] HKCFI 4504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3530 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.      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 28 November 2019, 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 22 November 2019 (“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/2019/HCAL003530_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds (other than Torture Risk[1]) under the Unified Screening Mechanism (“the USM”).  Thus, the Board refused the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 July 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

3.  The applicant had previously raised a torture claim on 29 June 2008, and the Director rejected his torture claim on 15 May 2012.  A petition against the rejection was rejected on 10 July 2012.  Thus, the applicant’s Torture Risk had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by family members of his former girlfriend, Nazia Khan (“Nazia”), as they blamed him for causing her death.

Oral hearing

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

7.  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.

8.  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

9.  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).

10.  The applicant annexed a document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” to his Form 86.  The relevant parts of this document are reproduced as follows:-

“1. The Respondent is in breach of procedural fairness in the following parts:

(1) the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

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

…

6. The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.

7. Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.

…”

11.  In his supporting affirmation dated 28 November 2019, the applicant asserted the same grounds as stated in paragraphs 6 and 7 of the grounds quoted above.

Discussion

12.  Most of the grounds raised by the applicant are very general, vague and without any specificity.  Since the applicant was absent at the hearing, there was no opportunity for this court to clarify with him on the grounds of his intended judicial review.  Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand his case.

13.  From what the applicant has written, it seems that the applicant is alleging that:-

(1) there was no oral hearing before the Board;

(2)  the applicant was not invited by the Board to submit written submissions and evidence;

(3) the Board relied on unofficial source of news, hearsay and outdated cases as country of origin information;

14.  First of all, it is not true that there was no oral hearing before the Board.  The Board held an oral hearing on 21 October 2019 to assess the applicant’s petition and the applicant appeared in person.

15.  In fact, the Board questioned the applicant in details about the incidents that he claimed to have led him into fear of harm.  The applicant did provide answers to the Board’s questions.

16.  Thus, contrary to what the applicant alleged, he was given the chance to present his case and grounds of appeal to the Board in person at an oral hearing.

17.  The applicant alleged that the Board did not invite him to give written submissions and evidence.   However, the applicant had lodged a Supplementary Claim Form on 20 June 2018, which was completed with the assistance of the Duty Lawyer Service and gave details of his case.  The applicant also submitted a document purporting to be a death certificate for his girlfriend.  The fact that the Board gave no weight to this piece of evidence does not mean that the applicant was deprived of the chance to submit evidence.

18.  If the applicant did have further written submissions or evidence to submit to the Board, he could have done so at the oral hearing before the Board. It is the applicant’s duty to establish his claims before the Board and he should present whatever evidence and submissions, written or oral, so as to satisfy the Board that he is entitled to non-refoulement protection.  It is not right to suggest that the Board has to invite him to submit written submissions and evidence before he would do the same.

19.  The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant failed to identify which pieces of information and materials he alleged were wrong for the Board to rely on.  Thus, there is simply no substance in the applicant’s allegation in this regard.

20.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

21.  Thus, the general assertionsput forward by the applicant above, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness, cannot help the applicant at all.  This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

22.  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).

23.  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 valid ground being advanced by the applicant for the intended judicial review.

24.  As aforesaid, in assessing the appeal by the applicant, the Board arranged an oral hearing on 21 October 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board.

25.  Having considered all the evidence, the Board had serious doubts about the truthfulness of the applicant’s claims, as it found significant inconsistencies in the details presented by the applicant at different times.

26.  Most importantly, the applicant had provided different accounts at different stages of the location where Nazia was shot, sustaining her ultimately fatal injury.  Even having regard to the passage of time since the relevant events, the Board did not accept that the applicant would have forgotten in which city his girlfriend was shot if he were telling the truth about it.

27.  The applicant’s description of the two shootings were vague but surprisingly similar.  The applicant claimed that on each occasion they were shot at when they tried to leave the house where they had been staying, having been told that their whereabouts had been discovered.  The Board found it hard to believe that they would have left their places of refuge twice, knowing that their whereabouts was known, without taking precautions to avoid being seen on the way out.  The Board considered that the objective implausibility of the circumstances described by the applicant and the marked similarity of the circumstances in which the two claimed incidents occurred further suggested that the applicant’s account was fabricated.

28.  The applicant had also provided vague and inconsistent evidences about his own movements after the claimed shooting of Nazia.  Moreover, while he claimed before the Immigration Department that there was a further occasion after Nazia’s death when his enemies fired at him, he claimed at different times that the incident occurred in two different places.  Also, at the Board’s hearing, he denied that there was any subsequent occasion when his enemies shot at him.

29.  On the whole, the Board found that the applicant’s account of being pursued by his enemies to a number of different locations within Pakistan over a period of 6 years to be inconsistent, vague and implausible.  Given his own conviction about the determination of his enemies to find and kill him, the Board simply did not accept that each time he relocated they managed to discover where he was living, yet they never managed to inflict any harm on him, let alone kill him.

30.  The Board also found that the delay of two years between the issue of his passport and his departure from Pakistan to be inconsistent with his holding a genuine fear for his life.  Given the other problems with the evidence, the Board did not accept the explanation that he was only able to obtain money from friends to leave Pakistan two years after he formed the intention to leave and obtained a passport for that purpose.

31.  The Board’s findings as summarized above led to the Board’s refusal to accept the following:-

(1)   the applicant fled Pakistan for the reasons he claimed;

(2)   the applicant’s girlfriend Nazia was killed by her brothers, who continued to search for the applicant for the next 6 years;

(3)   the applicant was forced to flee from his village and move to different locations within Pakistan for the 6 years prior to his departure in order to avoid Nazia’s family, or hitmen hired by her family to kill him; and

(4)   the applicant was at risk of being killed or harmed for the reasons he claimed.

32.  The Board considered that the applicant had not been truthful as to the circumstances prior to his departure.  The Board was not satisfied that he was threatened with death by the family of his girlfriend who disapproved of their relationship.  The Board did not believe that she was shot and killed by her brothers, or that the applicant was hunted to various locations in Pakistan over the 6 years prior to his departure by her brothers, or others hired by the family to kill him.  The Board did not accept that the applicant was at risk of harm for the claimed reasons if he returned.  The Board was not satisfied that there was a real or substantial possibility that the applicant would be harmed by or at the instigation of his girlfriend’s family if he were to return to Pakistan.

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

34.  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.

35.  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).

36.  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.

37.  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.

38.  For the sake of completeness, this court noticed that the adjudicator of the Board, Ms MATHLIN Rosemary, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of her capacity. 

39.  Ms MATHLIN was a member of the Board and she was determining the applicant’s petition in her capacity as a member of the Board.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to her.  She was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

40.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

41.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms MATHLIN was indeed a member of the Board and did have the power to determine the applicant’s petition.  It is just not right to name herself as an adjudicator of the Non-refoulement Claims Petition Office.

42.  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. 

43.  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

44.  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

Form CALL-1