ABID MUHAMMAD SUFYAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1023/2021

[2026] HKCFI 2090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1023 OF 2021

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 oral submissions by the applicant 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 20 July 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 22 April 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/HCAL001023_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish any of the applicable grounds for non-refoulement protection under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 June 2019, which rejected the applicant’s non-refoulement claim, and confirmed the same.

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 if refouled to Pakistan, he feared he would be harmed or killed by his paternal uncle Zaryab, who belonged to or was closely related to Pakistan Muslim League-N (“PML-N”), as Zaryab wanted the applicant to transfer to him the piece of land which the applicant’s father intended to transfer to the applicant, but the applicant refused.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 March 2026.

6.  When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he did not know much about that and he just wanted to stay in Hong Kong.

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.  The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 20 July 2021.

9.  What the applicant said at the oral hearing before this court did not constitute any valid ground for his intended judicial review either.

Discussion

10.  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).

11.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

12.  In assessing the applicant’s appeal, the Board held an oral hearing on 14 July 2020 and the applicant was present. Thus, the applicant was given the chance to present his case to the Board in person.

13.  As can be seen from paragraphs 22 to 75 of the Board’s Decision, the Board questioned the applicant extensively during the Board’s hearing. After due consideration of the applicant’s evidence, the Board rejected the applicant’s evidence as being not credible. The Board found that the inconsistencies, implausibilities and incredibilities of the applicant’s account were so numerous that the only reasonable inference was that the applicant had made up the story about Zaryab and the land and forgot the details of the script from time to time, and had not given sufficient thought as to whether the script was plausible, credible and possible.

14.  The Board found that the land in question had been in the possession of the applicant’s father for 20 to 25 years and was still in his father’s possession. It was non-sensical that Zaryab would want to look for the applicant instead of going after the applicant’s father, or would want to kill the applicant instead of the applicant’s father.

15.  The Board also found that the applicant’s claim that Zaryab belonged to or was closely related to PML-N was made with the intention to boost his claim. The Board found that the applicant in fact knew nothing about the political scene in Punjab and in Pakistan.

16.  Nevertheless, the Board still went on to assess the applicant’s claim on the assumption that the applicant’s evidence were credible. However, the Board still found that the applicant could not establish his claim for non-refoulement protection.

17.  The Board found that the applicant failed to show any substantial grounds for believing that he would be subjected to torture, ill-treatment, arbitrary deprivation of life or persecution. There was no state acquiescence in the applicant’s dispute with Zaryab. The applicant’s fear of Zaryab was not for any Convention reason. What the applicant suffered fell far short of severe pain or suffering, nor did it attain the minimum level of severity.

18.  Further, the Board found that state protection was available to the applicant and internal relocation was also a viable option for him. The Board found the suggestion that Zaryab was so powerful and so resourceful as to be able to track down the applicant anywhere in Pakistan to be just fanciful. The Board also found that it was not unduly harsh or unreasonable for the applicant, being a young, abled-bodied male with 11 years of education, to relocate to some other areas in Pakistan and to establish himself.

19.  The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

20.  The assessment of evidence and risk of harm was primarily within the sole ambit 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 decision.  

21.  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.  

22.  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

23.  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