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HCAL 1333/2025
[2025] HKCFI 3361
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1333 of 2025
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BETWEEN
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Wajid Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 Notice of Decision dated 6 January 2025 of the Director (“the Director’s Decision”) and Decision dated 8 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision, which rejected his non-refoulement claim.
2. As the Director’s Decision had been adjudicated upon by the Board, the Director’s Decision is not amenable to judicial review.[1] This application is dismissed.
3. The applicant did not request a hearing.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
5. The applicant is a national of Pakistan. He sneaked into Hong Kong from the Mainland by boat on 4 October 2024. He surrendered to the Immigration Department on 8 October 2024 and lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his enemies first, due to political disputes; and later an added ground of sexual orientation. [58]-[59] He said that because of his sexual orientation, he was subjected to violence and gun shots by his cousins and other people in Pakistan, who are Muslims.
6. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001333_2025_files/the_Board's_Decision.pdf.
The Director’s Decision
7. 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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 28 March 2025, 8 April 2025 and 16 April 2025, the Board conducted an oral hearing for his appeal. He was represented by counsel under the Duty Lawyer Scheme and the Director was represented by government counsel.
10. Having considered the evidence, the Board found that because of his change of evidence, inconsistencies and contradictions of his evidence, his evidence in support of his claim was not reliable.[98]-[99] The Board further considered that even if his evidence were accepted, his risk will be mitigated or neutralized by internal relocation. [143]-[149] For these reasons, 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 11 June 2025 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant reiterated his story of his claim and said that if he returns to Pakistan, his life will be in danger. In addition, he had set out a list of grounds summarized below.
(1) The Board’s Decision is wrong and unreasonable.
(2) The Board had not taken into account of his right to life.
(3) The Board had placed too much reliance on the country of origin information and failed to consider his personal background and experience.
(4) The Board had unreasonably demanded him to answer questions.
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. As the reasons in his affirmation are the same facts that the Board had considered and rejected and the other grounds are his bare assertions without any evidence in support, the applicant has raised no valid ground to challenge the Board’s findings[2].
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.
Dated the 2nd day of October 2025
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 2/10/2025
Wajid Muhammad
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25451
Director of Immigration
Putative Interested Party’s ref. no.:
INCL-2751-24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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