MUHAMMAD ZAHID v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, the applicant’s name be amended to “Muhammad Zahid” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 September 2020”.

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 6 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-

“DATE OF IMMIGRATION 10 SEP 2020”

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 16 September 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 August 2018 (“the Director’s Decision”).

3.  At the oral hearing before this court on 9 December 2025, the applicant confirmed that the Leave Application was in respect of 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/2020/HCAL002008_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected his non-refoulement claim.

Amendments

5.  The applicant stated his name as “ZAHID MUHAMMAD” in Form 86, but according to his Recognizance, his name should be written as “Muhammad Zahid”.  Thus, on this court’s own motion, the applicant’s name is amended to “Muhammad Zahid”.

6.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 16 September 2020”.  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 claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of being harmed or killed by his uncle, Munsaf Khan, due to a land dispute.

Oral hearing

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

10.  When this court asked the applicant for the grounds of his intended judicial review, he simply said that his friend told him to apply for judicial review and the court would listen to him properly.  However, 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.  The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 6 October 2020.

13.  What the applicant said at the oral hearing did not amount to any grounds for judicial review either.

Discussion

14.  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).

15.  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.

16.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 18 June 2020 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

17.  As can be seen from the Board’s Decision, the Board had thoroughly analysed the applicant’s claims and the applicant’s risks from his uncle.  The applicant did not adduce any evidence to support his claim, and he agreed that the evidence was based on his assertion only.  The Board found that the applicant’s evidence relating to the facts on which his claims were based amounted to unreliable and incredible evidence.

18.  After due consideration of the law and all the evidence, the Board found that the applicant had never been harmed by anyone in his home village.  The verbal threat of harm from his uncle was only hearsay information from fellow villagers and his uncle’s companions.  The threat only occurred after he wanted the land and asked his uncle to let him have the whole farm for himself after his father’s death.  His uncle had in fact farmed the land with his father for their livelihood for many years.

19.  Regarding the applicant’s claim about the inaction by the police, the Board found that it was clear from the evidence that his uncle was not a trespasser on the land, the dispute between the applicant and his uncle was most likely a civil dispute and not a criminal matter.

20.  Taking into account of the country of origin information (“COI”), the Board was of the view that reasonable state protection was readily available to the applicant should he need it upon refoulement.

21.  The Board also found internal relocation as a viable option for the applicant, being an able-bodied man who had worked as a self-employed driver for 5 years in Pakistan.  The applicant’s own evidence was that his uncle was only a farmer and did not hold any post in any political party.  The applicant could avoid any perceived risk from his uncle by relocating to other parts of the country.

22.  In relation to the applicant’s fear of return, which was assessed on all the applicable grounds under the USM, the Board found that the applicant’s experience certainly did not amount to torture under section 37U of the Immigration.  His problem was only a private dispute.  The applicant did not have a Convention reason for ill-treatment.  The Board was satisfied that the applicant did not face a real risk of any of the proscribed forms of harm upon refoulement.

23.  Based on its findings as summarised above, the Board concluded that the applicant had failed to substantiate a case for non-refoulement protection.

24.  The assessment of evidence, COI 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.

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