Qaiser Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2862/2019

[2025] HKCFI 2887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3448 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.   The Form 86 be amended on the court’s own motion.

2.   The Leave Application be dismissed.

Introduction

1.By prescribed Form 86 filed on 30 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 August 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 24 June 2025. Since the applicant was serving a term of imprisonment in Stanley Prison, he was brought to court by the Correctional Services Department under a body order.

Background

3.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.The applicant is a national of Pakistan.  He was arrested by police in Hong Kong on 23 December 2007 and was referred to the Immigration Department the next day.  He claimed that he departed Pakistan for Guangzhou on 3 December 2007, and entered Hong Kong by boat from Shenzhen without permission on 14 December 2007.  The applicant lodged a torture claim on 6 January 2008, which was refused in a previous decision of the Director dated 14 February 2012.  The applicant raised his current non-refoulement claim on 22 April 2013.  In the Director’s Decision, the applicant’s claim was considered under all applicable grounds except the risk of torture^[1], i.e. BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The basis of the claim was that he would be harmed or killed by his aunt and her four sons for an outstanding loan.

5.According to the applicant, he owed his aunt a loan in the sum of 300,000 Rupees, which were made up of the earlier loan his father borrowed for his mother’s operation in around 2004 or 2005 as well as the loan that he took out for the setting up of his own garment business on 7 March 2007.  The applicant’s business failed, and he could not make payments for the loan.  In around late March and April 2007, her aunt came to the applicant’s house with her four sons to demand repayment of the loan.  The sons started punching and kicking the applicant.  They further threatened that if the applicant did not repay the money, they would kill him.  The applicant’s face bled, was bruised and swollen from the assault that lasted for about 15 minutes. 

6.After the attack, the applicant went to stay with his uncle near Iqbal for about 8 months.  The applicant’s brother told him that the aunt continued to bother the applicant’s family and demand repayment of the loan.  The family also moved to another place.  The applicant therefore decided to flee the country.

7.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds except torture risk.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.On 23 August 2019, the applicant attended a hearing before the Board, during which he gave oral testimony.

9.The Board found that there was no real risk of harm because the applicant’s injuries from the attack by his aunt and her sons did not meet the minimum level of severity, and that the problem with the loan was a purely private matter.  The Board also found that reasonable state protection was available.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

10.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for 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.

Discussion and conclusion

11.In his Form 86 the applicant raised the following grounds for judicial review: 

(a)   The Board’s Decision was unreasonable and unfair;

(b)   Insufficient importance or weight was given to state acquiescence;

(c)   Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)   The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

12.However, the applicant did not provide any particulars in support of his grounds.

13.At the hearing, this court asked the applicant whether he had further any grounds he wished to submit in support of the Leave Application.  Initially, the applicant asked to adjourn the proceedings so that he could find a lawyer to represent him.  He claimed that he was not aware of the Board’s Decision.  Since the applicant had filed the Form 86 sometime ago, this court therefore took the applicant through the entire chronology of the case.  Afterwards, the court also asked the clerk to show the applicant the Form 86 together with the written grounds attached with the Form 86.  The applicant asked to have the grounds interpreted to him.

14.After the interpreter had interpreted the grounds to him, the applicant informed the court that at the time when the Board’s Decision was delivered, he was in custody.  He paid $1,500 to a “lawyer” to prepare the Form 86 as well as the written grounds.  He further confirmed that he no longer required an adjournment.

15.The court asked the applicant whether he had anything to elaborate or add to the written grounds, the applicant stated that all the things he wanted to say had already been set out in writing and there was nothing he wanted to add.

16.It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

17.The Board’s findings summarized in [9] above are findings of fact, which the court in a judicial review will not interfere with.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  The Board’s conclusion was arrived at after having carefully examined the applicant’s evidence, and its assessment of the relevant COI.  The applicant’s written grounds are mostly not concerned with the Board’s Decision.  For those concerning the Board’s Decision, they are vague and general without any particulars.  Despite having been given a lot of time at the hearing, the applicant was not able to advance any further grounds in support of the Leave Application.  All in all, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Orders

18.The Form 86 be amended on the court’s own motion.

19.The Leave Application be dismissed.

Dated the 11^th day of July 2025

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