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HCAL 3347/2019
[2025] HKCFI 3868
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3347 OF 2019
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BETWEEN
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Zaheer 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”.
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 1 November 2019 and filed on 11 November 2019, 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 8 November 2019 (“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/2019/HCAL003347_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that there was any risk on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 August 2019 (“the Director’s Decision) and confirmed the same.
Amendments
3. The applicant named the Board / Non-refoulement Claims Petition Office as the proposed respondent in Form 86, when only the Board should be the putative respondent.
4. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because he belonged to the Pakistan People’s Party (“PPP”), and if returned to Pakistan, he would be tortured or even killed by a man named Raja Zaib (“Raja”), who belonged to the Pakistan Muslim League – Nawaz (“PML-N”) due to their different political beliefs.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was heard on 10 June 2025.
9. At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the annexure that was filed with his Form 86, the facts of his case had been presented to the Board and he has nothing further to add.
Grounds for judicial review
10. 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).
11. The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”. The contents of this document are reproduced as follows:-
“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.
2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.
3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.
4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.
5. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.
6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.
7. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.
8. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”
12. The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
Discussion
13. First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
14. Paragraphs 2, 4 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Paragraph 8 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed. It is not a ground at all. Thus, only paragraphs 1, 3, 6 and 7 of the grounds are relevant to the Leave Application.
15. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.
16. In any event, the Board did assess the applicant’s risk of right to life. The Board had considered and rejected the claim that there was a real danger the applicant would be killed by Raja upon his return to Pakistan. The Board found, even if there was any event that took place in the past that might be described as an attack by Raja, it was the applicant’s own evidence that he was outnumbered by Raja in both the assault and the kidnap incident. However, he only suffered minor injuries in the assault and only injured his hand when he blocked a beer bottle thrown at him by Raja when he was drunk during the period of the alleged kidnap. These suggested that Raja had no intention to cause the applicant serious harm, not to mention death.
17. In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.
18. In fact, the Board did consider the applicant’s personal background and experience extensively. The Board questioned the applicant’s involvement with PPP, the number of members of both PPP and PML-N in the applicant’s home area, and the applicant’s relationship and enmity with Raja in details. Further, the Board had also taken into account the applicant’s political affiliation with PPP, his alleged fear from Raja who was from PML-N, and found that any favour the Pakistani police might want to give the ruling party would not be given to PML-N, which was not the then ruling party in the applicant’s home area.
19. The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to that evidence and ruled otherwise. This is just a vague and general accusation without any specificity.
20. In fact, the Board did not make any finding that the police in Pakistan would not be able to protect the applicant. The Board also considered the COI submitted by the applicant and his duty lawyer that described the effectiveness of the Pakistani police being hindered by corruption and impunity. However, the Board found that those references referred only to the adequacy of authorities in Pakistan excluding Jammu and Kashmir, where the applicant’s home area was, and the references were considered irrelevant.
21. In paragraph 6 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.
22. There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.
23. In paragraph 7 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
24. The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection.
25. As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
26. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
27. 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).
28. In assessing the appeal by the applicant, the Board held an oral hearing on 21 October 2019. The applicant was present and was given the chance to present his case to the Board in person. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion. The Board found the applicant’s account lacking in details, inconsistent and defied logic.
29. First, the applicant reasoned that he could not obtain proof such as first incident report and medical report in support of his claim because he was in detention at the Castle Peak Bay Immigration Centre (“CIC”) and could not contact his family. This was simply untrue as the CIC permitted detainees to send and receive letters. The applicant did not seem to have any trouble sending out the written representations and notice of appeal to the Board when he was there.
30. The applicant also gave different and conflicting accounts of how the assault by Raja began. His account of the kidnap also defied logic. Hence, the Board concluded that it could not find the centerpiece of the applicant’s story to hold. The Board assessed the risk of the applicant being subject to ill-treatment was low, and it was not persuaded that there was any real risk the applicant would face if he were to return to Pakistan.
31. Moreover, though noting from COI that police effectiveness varied by district in Pakistan, and the failure to punish abuses contributed to a climate of impunity throughout the country, the Board found that there had been improvements in police professionalism. State protection was available to protect the applicant from any risk he might have over being harmed by the alleged enemies.
32. As to internal relocation, the Board found that there were many places where the applicant could relocate in Pakistan should he continue to be fearful of staying in his home area. It would not be unduly harsh or unreasonable for the applicant as an able-bodied young adult with 2 bachelor degrees and work experience to relocate to, say, Karachi should he found it uncomfortable to stay at home.
33. As aforesaid, the finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion.
34. 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.
35. 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
36. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of September 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 his 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 September 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 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16206/19/8/68/P3185
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 562/19 (T1S106)
(formerly RBCZ 10423/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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