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HCAL 2120/2020
[2025] HKCFI 5865
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2120 OF 2020
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BETWEEN
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Attique Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 23 October 2020, 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 16 October 2020 (“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/HCAL002120_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 12 November 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
3. Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4], but not Torture Risk. The applicant made a torture claim previously which was rejected by the Director on 3 July 2012. The Director’s decision was upheld on appeal on 2 August 2012.
4. Thus, the applicant’s Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.
Amendments
5. The applicant named the Board as both the putative respondent and the putative interested party in Form 86 but spelt the Board’s name wrong.
6. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.
7. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
8. 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.
9. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would face a threat of death at the hands of his paternal aunt or her sons due to a land dispute between his father and his aunt. The dispute led to his brother being shot and killed by two of his aunt’s sons. After his father died, his aunt began to target him because his other brother and his sisters were married.
Oral hearing
10. The applicant requested for an oral hearing of the Leave Application and his case was heard on 6 November 2025.
11. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that his life would still be in danger in his home country because of the fight with his brothers. His elder brother’s son had a fight with his aunt. The applicant confirmed that these matters had already been presented to the Board for assessment, but there were fresh incidents and if he was sent back to his country, he would face the same situation to his life.
Grounds for judicial review
12. 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).
13. However, the applicant did not assert any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 23 October 2020. He just stated in the affirmation that he was not satisfied with the Board’s Decision and he could not go back to his country because his life was not safe in his own country.
14. What the applicant said at the oral hearing before this court is not a valid ground for the intended judicial review either.
Discussion
15. First of all, it is not for this court to receive new evidence in a judicial review (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090). Thus, the applicant cannot rely on the alleged fresh incidents that he wanted to raise to this court as a ground for the intended judicial review.
16. 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).
17. The applicant’s alleged problem that his life would be in danger upon refoulement to Pakistan had already been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
18. However, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.
19. In assessing the appeal by the applicant, the Board arranged an oral hearing on 5 October 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
20. As can be seen from paragraphs 35 to 42 of the Board’s Decision, the Board did give detailed reasons as to why the applicant’s evidence about the problems that he claimed to have had in Pakistan and his fears that he would be targeted for violence by his aunt and her sons had no credibility. In particular, the Board found that the applicant offered no credible explanation as to why his aunt and her sons would seek to harm him as his aunt was the legal owner of the disputed land. The applicant was also inconsistent as to the origin of the dispute between the families.
21. The Board concluded that the applicant’s claims about the dispute with his aunt were either greatly exaggerated or entirely untrue. Accordingly, the applicant had established no basis for a finding that he would face harm at the hands of his aunt and her sons should he return to Pakistan. The applicant was therefore not at a real risk of any of the proscribed forms of harm under the USM.
22. 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 not necessary for the Board to consider availability of state protection.
23. 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).
24. 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.
25. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
26. 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.
27. 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
28. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of December 2025
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( Irene 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/Handed to the applicant/the applicant’s solicitors on:
2 December 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14477/18/11/320/P2885
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3964/18
(formerly RBCZ 2001142/14)
QA T/C 142/12
(Formerly RBCZ/1395/11)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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