CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1262 of 2020
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BETWEEN
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Saeed 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 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 Decision dated 11 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 10 September 2025.
3. 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
4. The applicant is a national of Pakistan. He is an illegal immigrant as he entered Hong Kong by boat from China and was arrested by police. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the sons of his paternal uncle in a family land dispute. They had threatened him with weapons.
5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001262_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. Having rejected the applicant’s torture claim, the Director considered the applicant’s claim in relation to the following risks:
a. 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”);
b. 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
c. 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”).
7. By way of Notice of Decision dated 9 October 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Further, state protection and internal relocation being viable may mitigate or neutralize the applicable risks.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 20 April 2020, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board found the facts below.
(1) The Board accepted that the applicant was afraid of returning to Pakistan because of the past threats of harm from his relatives.[43]
(2) However, there was no evidence that the relatives would harm or kill him if he returns to Pakistan.
(3) His fear of the risks is speculative.
(4) The dispute is a localized one. If he were to stay away from the Home Area, it is unlikely that he would face any further trouble.
(5) The injuries he had suffered were minor injuries, which did not reach the required threshold.
(6) State protection will be available. [44]
(7) Internal relocation such as Rawalpindi or Hyderabad is viable. [80]
10. For the reasons above, 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 23 June 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.
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. Before me, the applicant said that the Board’s Decision was not wrong.
15. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
16. 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 15th day of October 2025
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(M.O. WONG)(Ms)
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 15/10/2025
Saeed 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 15/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13985/18/10/327/P2772
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/6150/08 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1