FAWAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1056/2025

[2025] HKCFI 4453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1056 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

3.  On the Court’s own motion, Form 86 is amended to the effect that the respondent is the Board and the interested party is the Director of Immigration (“the Director).

The applicant

4.  The applicant is a national of Pakistan. He is an illegal immigrant, having entered into Hong Kong illegally on 7 August 2024 or about that date and surrendered to the Immigration Department. He lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by various unnamed people (“his enemies”) because he no longer belongs to a Sunni sect. He said that he had been subjected to threats and assaults.

5.  Details of his claim are set out in the Board’s Decision. [42] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001056_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of Notice of Decision dated 4 February 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 9 April 2025, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board found the facts below.

(1)  The Board accepted that the applicant was involved in various incidents in which he was threatened by his enemies. He was, however, never physically harmed by them. [44]

(2)  However, there was no evidence to show (i) that his enemies would harm or kill him if he were to return to Pakistan; (ii) that he faces risk throughout Pakistan; (iii) that he suffered injuries to the required severity; and that the state was unwilling to help him. [45]

(3)  State protection appears to be available to him. [69]

(4)  On the facts as found, he cannot bring himself within any of the applicable risks by the definition of “refugee” in Article 1(A)(2) of the Convention relating to the Status of Refugees and its 1967 Protocol. [70]

(5)  If he wants to relocate, Faisalabad or Islamabad will be suitable cities for him. [96]

10.  For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 6 May 2025 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said he disagreed to the Board’s Decision. However, he did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has raised no valid ground to challenge the Board’s findings.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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