MUZAFFAR BILAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3364/2019

[2025] HKCFI 3940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3364 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 oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 5 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 and filed on 12 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision made by Ms Susan Marie Pinto dated 5 November 2019. The said decision was in fact made by Ms Pinto in her capacity as a member of the Torture Claims Appeal Board (“the Board”). It is clear that the applicant must be referring to the Board’s decision dated 5 November 2019 (“the Board’s Decision”) in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003364_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 under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 October 2018 and confirmed the same.

Amendments

3.  In Form 86, the applicant named both the Board and the Director as the proposed respondents, when only the Board should be the putative respondent.

4.  The applicant did not name any putative interested party in Form 86 when the Director should be so named.

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

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, it is so amended.

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 applied for non-refoulement protection because if returned to Pakistan, he would be harmed or killed by members of the Pakistan Muslim League (“PML(N)”) due to his involvement in the Pakistan People’s Party (“PPP”). He and his father were also framed in relation to a false murder case in early 2016.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 June 2025.

10.  At the hearing, when this court asked the applicant to give his grounds for the intended judicial review, the applicant merely said that he relied on the same old matters, which had all been presented to the Board, and he had nothing further to say.

Grounds for judicial review

11.  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).

12.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 12 November 2019. As aforesaid, the applicant also failed to advance any ground at the oral hearing before this court.

Discussion

13.  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).

14.  Thus, even though the applicant has failed to advance any 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.

15.  In assessing the appeal by the applicant, the Board held an oral hearing on 31 October 2019. The applicant was present and was given the chance to present his case to the Board in person.

16.  However, the Board considered that the discrepancies in relation to his written claims regarding his employment and residence outside of Pakistan prior to his arrival in Hong Kong raised considerable concerns regarding his overall credibility. The Board was of the view that the applicant was deliberate in concealing his past stay, employment and unsuccessful application for asylum in Greece, as the applicant was somewhat reluctant to answer the Board’s questions in these regards.

17.  The Board also found the applicant’s evidence to the Board in relation to his claims extremely vague and unpersuasive. When asked for details with regards to his association with PPP and elaboration on the “enmity” and “enemies”, the applicant could not provide any level of detail of his enemies or why they would have any interest in him. He was also unable to provide any details of the murder case, or the reasons as to why his father was implicated.

18.  Thus, the Board found the applicant not to be a truthful witness, and the applicant had fabricated his claims in their totality. The Board did not accept that the applicant had any involvement with PPP, or that he and his father were sought and harmed, or that his father was arrested and charged for a false murder case, or the applicant was subsequently implicated and sought in relation to that case. The Board did not accept that any First Information Report or arrest warrants were lodged or existed in relation to a false murder case, or that the applicant would be arrested, charged or imprisoned in relation to any false murder case.

19.  The Board was also not satisfied that the applicant would be sought by any persons associated with PML(N), or any other political parties upon his return to Pakistan.

20.  The Board concluded that there was no substantial ground for believing that the applicant would suffer harm amounting to torture, or he would face a real risk to his life or persecution for reasons of his actual or inputed political opinion, or for any other reasons. Hence, the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

21.  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.

22.  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).

23.  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.

24.  The finding of facts was solely within the ambit of the Board. The Board was entitled to reach its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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.

26.  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

27.  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