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HCAL 372/2021
[2026] HKCFI 625
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 372 OF 2021
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BETWEEN
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Shoaib Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board |
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 (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 17 March 2021, 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 5 March 2021 (“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/2021/HCAL000372_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 March 2018 and confirmed the same.
Amendments
3. In Form 86, the applicant named “Torture Claim AppeaL Board Non-Refoulement” as the putative respondent, and “Torture Claim AppeaL Board Non-Refoulement Claim Petition Office” as the putative interested party.
4. In fact, only the Board should be named as the putative respondent and the Director should be the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
6. 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
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because he feared that he would be tortured or even killed by the Pakistan Rangers, a paramilitary law enforcement organization, if he returned to Pakistan. He claimed that his home village was on the border between India and Pakistan, where there was always cross boundary firing, and was part of the restricted zone under the control of the Pakistan Rangers. His two brothers had already been taken by the Pakistan Rangers and he feared he would meet the same fate.
Oral hearing
9. The applicant requested for an oral hearing and his case was heard on 15 January 2026.
10. However, when this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that his life was still in danger back in Pakistan as the army was controlling all over the country.
Grounds for judicial review
11. 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).
12. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 March 2021. He merely stated in the affirmation that he did not agree with the Board’s Decision and his life was in danger in Pakistan.
13. What the applicant said at the oral hearing did not constitute any ground for the intended judicial review either.
Discussion
14. First of all, the applicant’s danger had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
15. 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).
16. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
17. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 June 2020. The applicant was present and was given the chance to present his case to the Board in person.
18. As can be seen from the Board’s Decision, the Board had examined the applicant’s case with due care and considered extensive country of origin information (“COI”) materials that were relevant to the applicant’s claim.
19. After due consideration of the evidence, the Board was not satisfied that the applicant had established his account as to why he came to Hong Kong, or his alleged enmity with the Pakistan Rangers. As can be seen in paragraph 24 of the Board’s Decision, the Board found many aspects of the applicant’s account set out in the Non-refoulement Claim Form lacking in detail, inconsistent with his account in other settings without plausible explanation, or simply defy logic.
20. By reason of the cumulative effect of its assessment of the credibility of the applicant’s account, the Board found that the centerpiece of his story could not stand. The Board rejected the basis of the applicant’s claim in its entirety and found nothing that could give rise to any legitimate claim for non-refoulment protection.
21. Further, the Board found from reliable and fully referenced COI that the applicant had avenues to seek redress if he was aggrieved by actions taken by the Pakistan Rangers, although it was observed by credible COI that the chances of them going “rogue” or behaving unprofessionally were low.
22. The Board also found that it would not be unduly harsh for the applicant, being an able-bodied young adult with good experience as a bus driver, to relocate in Pakistan should he continue to be fearful of staying at home.
23. Thus, the Board concluded that the applicant had failed to demonstrate any real risk on all the applicable grounds under the USM.
24. The finding of facts including the assessment of risk and COI 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.
25. 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.
26. 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 4th day of February 2026
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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:
4 February 2026
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: 4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10807/18/3/259/P2082
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 25/18 (Formerly RBCZ/3001703/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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