MEHMOOD ARSHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1383/2022

[2026] HKCFI 3155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1383 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 1 December 2022 (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 26 October 2022 (the “Board’s Decision”). 

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 11 May 2026 (the “Hearing”) and the Applicant attended in person. 

3.  In support of the Leave Application, the Applicant filed 2 affirmations, one on 1 December 2022 (the “First Affirmation”) and the other on 5 May 2026 (the “Second Affirmation”). 

Background

4.  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 it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision^[1] is included below for reference. 

Discussion

5.  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 of Immigration (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.) 

6.  On the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the First Affirmation, the Applicant simply attached a copy of the Board’s Decision. 

7.  In the Second Affirmation, the Applicant attached his submissions as well as some documents in support of the Leave Application.  I had gone through the documents with the Applicant at the Hearing.  The Applicant stated and confirmed the following:-

(a)   The document “088 Annex A” is the translation of the document “087 Annex A”.  This document was adduced before the Board.  The Applicant relies on this document to show that he was a journalist.  I note that the Board had in fact accepted that the Applicant was a local news reporter in §28 of the Board’s Decision. 

(b)   The document “089” is another document which the Applicant wants to rely upon to show that he was a journalist.  The Applicant confirmed that this document was also before the Board.  As I have pointed out in the preceding sub-paragraph, the Board accepted that the Applicant was a local news reporter in the Board’s Decision. 

(c)   The documents “090 Annex B”, “091 Annex B”, “092 Annex B”, “093 Annex B” and “094 Annex B” were all hospital records.  The Applicant confirmed that these records were also before the Board.  The Applicant wants to rely on these documents to show that he was indeed attacked and injured.  These documents were referred to in §29 of the Board’s Decision, and the Board accepted what the Applicant said about these documents.  The Board further accepted (at §30) that he was attacked and threatened in the local area. 

(d)   The rest of the documents are letters issued by the Applicant to the police, and complaints made to the police, together with the translation.  The Applicant again confirmed that all these documents were before the Board.  I note that the Board had referred to these documents in §29 of the Board’s Decision, and accepted what the Applicant had said about these documents. 

8.  As the Board had duly considered all these documents, and had accepted what the Applicant had said about these documents, I do not see how these documents can assist the Applicant in the Leave Application. 

9.  In the submissions attached to the Second Affirmation, the Applicant made a number of points which can generally be summarized as follows:-

(1)   The Director and the Board had reached the decisions wrongly.  The Applicant contended that the decisions were not reasonable and fair (as required by the Wednesbury test). 

(2)   The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  He further claimed that the right to life is mainly protected by the criminal law and it must be protected from extrajudicial killings that he may face if he is deported back to his country.

(3)   The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case.  This had led to an unfair outcome of the case. 

(4)   The Board had acted unreasonably and was procedurally unfair by placing too much reliance on COI materials but had failed to take his personal background and experience into account.  Further, although the Director had listed relevant COI materials which support the aversions that the police in his country would not be able to protect, the Director had failed to consider or give enough weight to such evidence and ruled otherwise. 

(5)   The Director had failed to take into account or give enough weight to the Applicant’s argument. 

(6)   The Director had shown an unfair attitude towards the Applicant or the Applicant’s claims. 

(7)   The Board’s Decision and the Director’s Decision are irrational. 

(8)   The Board’s Decision was the result of procedural errors or unfairness. 

(9)   The Board had relied on web news which are not recognized officially by the authorities, and there was no proper investigation of his claims. 

10.  I do not consider any of the above Applicant’s contentions meritorious.  I shall briefly set out my reasons below.  In the submissions, it seems that the Applicant intended to challenge both the Board’s Decision as well as the decision of the Director dated 10 August 2018 (the “Director’s Decision”). 

11.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed. 

12.  In so far as the Applicant’s complaints in the submissions are made against the Director, I shall consider such complaints as if the complaints were made against the Board. 

13.  Point (1) is nothing more than a bare assertion with no particulars.  The Applicant has failed to explain how the Board had allegedly erred in the assessment, or why the Board’s Decision was allegedly unreasonable or unfair.  Accordingly, there is no substance in this ground.

14.  In relation to point (2), the Board had cited and applied the correct legal principles in the Board’s Decision.  The Board rejected the Applicant’s claims because it found that the Applicant should be able to receive sufficient protection if he returns to Pakistan (§§39-54 of the Board’s Decision), and that he can safely relocate to other cities within Pakistan (§§55-58 of the Board’s Decision).  Such findings were made after the Board had given the Applicant 18 months to produce evidence to show that he was not only a local reporter, but a nationally known reporter who was known by virtually everyone in Pakistan.  The Board acknowledged that if the Applicant could in fact adduce evidence to establish this fact, this might have a significant bearing on the outcome of the case.  However, the Applicant eventually was not able to come up with evidence showing the same (§§32-37 of the Board’s Decision).  Neither has the Applicant adduced such evidence before the Court. In the premises, I see no errors in the Board’s findings and reasoning.  The Applicant had also failed to identify any errors of the Board in this regard. 

15.  In relation to point (3), there is no allegation or evidence suggesting that the Applicant was persecuted or tortured by state actors in Pakistan (§54 of the Board’s Decision).  Accordingly, this ground has no relevance in the context of the case. 

16.  In relation to point (4), the Applicant has failed to identify the precise COI materials which he alleged the Board had placed too much reliance on, and has failed to explain why he said so.  He has also failed to state his personal background and experience which he alleged the Board had overlooked, and has failed to explain the relevance thereto.  The Board’s finding that the Applicant can obtain reasonable protection in Pakistan is based on detailed reasoning and supported by COI materials (§§39-54 of the Board’s Decision).  I again see no errors in the Board’s decision in this regard. 

17.  In respect of point (5), the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight. 

18.  In relation to point (6), the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him. 

19.  Points (7) and (8) are general assertions without particulars in support. 

20.  In respect of Point (9), the Applicant has failed to identify the precise “web news” the Board had allegedly relied on and which the Applicant claims to be wrong. 

21.  Having fully and carefully considered the Board’s 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 find that the Applicant would be reasonably protected if he returns to Pakistan and that internal relocation would also be possible (§§39-58 of the Board’s Decision).  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. 

22.  For completeness, the Applicant also said at the hearing on 11 May 2026 that the Director was wrong and he was entitled to protection under Article 28.  This point had already been addressed above and I shall not repeat the same here.  The Applicant then said both the Director and the Board did not give proper attention to the case, and as a result, the decisions were unfair. He said he is seeking justice under the Leave Application.  This is no more than bare assertion.  I have already dealt with the detailed grounds submitted by the Applicant above, and I do not consider that such bare assertion can assist the Applicant in the Leave Application.  Finally, the Applicant said his father was attacked and injured in 2023, and subsequently passed away on 31 October 2023.  The Applicant however has not adduced any evidence in support, and there is no evidence showing that the attack had anything to do with the Applicant’s claims.  I do not consider such bare assertion relevant in the circumstances. 

23.  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. 

24.  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

25.  In the premises, I make an order that 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