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

HCAL 1106/2020

[2025] HKCFI 3443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1106 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 on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the only Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 4 June 2020 (the “Form 86”), 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 19 May 2020 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. As it is trite that the Director should be named the proposed interested party instead of as a proposed respondent, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 17 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. The Applicant is from Pakistan. In gist, the Applicant claims that he is under threat of serious harm and death from an individual known as “Sharif” and his associates. Sharif is said to be the General Councillor of the Pakistan Tehreek-e-Insaf (“PTI”) in his home village.

Discussion

5.  Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Hence, I shall set out the brief reasons for my decision below.

6.  It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.  I should emphasise that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142. The Applicant has failed to do so. In the Form 86 and his accompanying affirmation, the Applicant did not advance any specific grounds of review in support of the Leave Application. He only made a general assertion in his Form 86 that the Board’s Decision was not fair and reasonable. He also claimed that he intend submit further documents without explaining what those documents were and how they would affect his claim.

8.  Notwithstanding the above, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is no indication that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

9.  Having considered the applicable legal principles (at §§11-21), the Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding (at §§24-26) that there was no evidence of any real risk of serious harm, given that:-

(1)  The intensity of past ill-treatment was assessed to be low. On the Applicant’s own evidence, he has not been personally subject to any physical violence or verbal threats from Sharif.

(2)  The circumstances of the death of his family members were not clear. Hence, the Board was not satisfied that it supports the Applicant’s case that Sharif had the intention to harm or kill him.

10.  The Applicant’s contention that he will not have protection in Pakistan or that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence. The Board was entitled to find that state protection will be available in any event or that the Applicant can be relocated to other parts of Pakistan (§§24-35, 42-48). After all, the threat to the Applicant is at best localised and there is no evidence to support the Applicant’s bare assertion that Sharif has extensive national influence over the Pakistan authorities. It is not disputed that the Applicant had spent 10 months in Kotla prior to his departure to Hong Kong without any threat of harm (§46) and that the Applicant is an able-bodied adult with extensive working experience so relocation will not be unduly harsh for him.

11.  I am satisfied that the Board’s Decision meets the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

12.  At the Hearing, the Applicant submitted a one-page note purportedly prepared by the Applicant’s friend on the Applicant’s instruction (the “Note”). Apart from repeating his earlier evidence, he also raised the following new allegations in the Note:-

(1)  The threat from Sharif remains, he has now become a Member of the Provincial Assembly and has now changed his party from PTI to “Muslim League N MLN” and had connections with the police.

(2)  He made a general complaint that the interpreters at the Immigration Department did not explain his case well and they did not understand the political persons in power in Pakistan.

(3)  He also claimed that a friend “Khalid” told him that Sharif had come to him and threatened to kill the Applicant whenever he returned to Pakistan[2].

13.  I have considered the contents made in the Note. In my judgment, they do not assist the Applicant’s case:-

(1)  I am not satisfied that the allegations made in the Note are credible. They are vague, unparticularised and not adduced by affirmation evidence. They are also only bare assertions not supported by any corroborating evidence.

(2)  Concerning his allegation of incompetence of the interpreters, the Applicant did not point to exactly what errors were made by the interpreters.

(3)  There is also no explanation from the Applicant on why he could not have adduced such evidence earlier.

(4)  In any event, I cannot see how the alleged change of role and political allegiance of Sharif (which appears to be limited to the provincial level) and the alleged recent threat from Sharif would materially affect the Board’s crucial finding on risk of harm and internal relocation alternatives within Pakistan.

14.  The Applicant’s intended challenge of the Board’s Decision has no realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

15.  In the premises, I make an order that the Form 86 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