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

HCAL 2249/2020

[2025] HKCFI 4884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2249 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

2.   The oral application for adjournment made on 1 September 2025 be refused.

3.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 11 November 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 3 September 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant named the adjudicator responsible for the Board’s Decision as the proposed respondent.  The Applicant did not name any interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 1 September 2025 (the “Hearing”) and the Applicant attended in person.  At the Hearing, the Applicant sought an adjournment on the basis that he was having a fever, and that he needed to go back to Caritas Medical Centre for medical reason.  The Applicant further said he had submissions to make in respect of the Leave Application and so he requested an adjournment.  In support, he adduced a 3-page document showing that he had visited Caritas Medical Centre at about 00:20 on 1 September 2025.  There is however no medical certificate showing that the Applicant was unfit to attend court hearing.  In fact, the 3-page document does not indicate the Applicant’s medical condition or why he visited the clinic earlier in the day.    

4.  I had the benefit of observing the Applicant at the Hearing.  Throughout the exchange with the court, the Applicant had demonstrated that he was fit to make submissions.  I asked the Applicant what submissions he intended to make in respect of the Leave Application.  The Applicant could not answer.  Instead, he simply kept on repeating that he had a lot to say and so he requested an adjournment. 

5.  I note that the Applicant had already attached the grounds in support of the Leave Application to the Form.  As indicated above, the Applicant could not explain to the court what he intended to say about the application in addition to the grounds provided.  In the light of the aforesaid, I consider that there is insufficient basis to justify the Applicant’s request for adjournment.  I accordingly indicated to the Applicant that the court was not prepared to grant the adjournment, and asked again whether the Applicant had anything to say in respect of the Leave Application. 

6.  In response, the Applicant said his life would be in danger if he returns to Pakistan.  He further said he has kids born in Hong Kong and they are currently studying in Hong Kong.  Accordingly, the Applicant does not want to go back to Pakistan.  The Applicant did not say anything relevant to the Board’s Decision at the Hearing. 

Background

7.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision and in the Board’s earlier decision dated 7 February 2017 (the “Board’s Earlier Decision”), and it is not necessary for me to repeat the same here.  The hyperlinks to the Board’s Decision[1] and the Board’s Earlier Decision[2] are included below for reference.

Discussion

8.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

9.  The Applicant did not provide any grounds in support of the Leave Application in the supporting Affirmation.  In the Form, the Applicant provided the following grounds in support of the Leave Application:-

(1)  The Board erred in concluding that the ill-treatment the Applicant feared would not amount to “a real and personal risk of being arbitrarily deprived of his life if refouled to Pakistan” and would not be a violation of BOR 2(1) if the Applicant is refouled to Pakistan.

(2)  §§8-9 of the Board’s Decision show that the Applicant had provided sufficient proof – letters from both the President of Pakistan People’s Party (“PPP”) Teh Kahuta and the President of PPP City Kahuta, showing that the Applicant would “face serious life threats from rival parties in the event of return to his homeland”. 

(3)  Despite the Applicant had provided the above proof, the Board erred in concluding that there is no “reasonable degree of likelihood” or “real risk” of being arbitrarily deprived of the Applicant’s life in the event of refoulement to Pakistan.  Furthermore, the Board did not explain why he came to the conclusion that there is no “reasonable degree of likelihood” or “real risk”.

10.  I do not consider any of the above contentions meritorious.  I shall briefly set out my reasons below.   

11.  Point (1) above is nothing more than a bare assertion with no particulars in support.  The Board’s Decision in question was only in relation to “BOR2 Risk”.  The Applicant was given a chance to submit further information in support of the “BOR2 Risk”.  In response, the Applicant only submitted a letter purportedly issued by the President of PPP Teh Kahuta (§§7-8 of the Board’s Decision).  The letter was similar to the one adduced by the Applicant in support of his original non-refoulement claim in 2015, and which both the Director and the Board had considered in the previous decisions (§9 of the Board’s Decision).  At the hearing conducted before the Board, the Applicant did not make any further submissions save and except to point out that his wife was pregnant and sick, and his daughters had already gone to school.  That was why the Applicant said he needed to stay in Hong Kong (§14 of the Board’s Decision).

12.  Given the above, I fail to see how the Board can be criticized for rejecting the claim under “BOR2 Risk”.  It should further be noted that in the Board’s Earlier Decision, the Board had found the Applicant’s evidence wholly unreliable and that the Applicant was not a credible witness.  The Board further found that there is no risk of him being subjected to torture, ill-treatment or persecution if he is to return to Pakistan (§§30-45 of the Board’s Earlier Decision).  Accordingly, based on the findings in the Board’s Earlier Decision, the Board was fully justified, and indeed correct, to reject the Applicant’s claim under “BOR2 Risk”.  I do not see any errors committed by the Board in this regard. 

13.  Points (2) and (3) can be considered together.  The Board had duly considered the document (§§8-9 of the Board’s Decision; §§17 & 33 of the Board’s Earlier Decision).  The Board was entitled to find that the letter does not assist the Applicant’s claim.  Leaving aside the issues of authenticity and reliability, the letter at most contained an  opinion of someone else that the Applicant would be at risk if he returns to Pakistan.  The Director and the Board were entitled to reject such opinion based on the evidence.  I also note that the Director had in fact pointed out the inconsistency in the content of a similar letter with the Applicant’s claims (§60 of the Director’s decision dated 30 October 2015).

14.  Having fully considered the Board’s Decision together with the Board’s Earlier Decision.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board was entitled to reject the Applicant’s claim.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

15.  I also do not regard what the Applicant said at the Hearing to be relevant to the Leave Application.

16.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

17.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

18.  In the premises, I make an order that the Form be amended as described above and the Leave Application be 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