Zubair Muhammad v. Torture Claims Appeal Board

HCAL 3350/2019

[2025] HKCFI 3864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3350 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

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 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 5 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/HCAL003350_2019_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (but not Torture Risk[4]) under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 8 August 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.The applicant had previously made a torture claim on 13 June 2009. The Director rejected his torture claim on 17 April 2013, and his appeal against that decision was refused by the Board on 28 May 2013. Thus, his Torture Risk had been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendment

4.The applicant misspelt the name of the Board as the putative respondent in Form 86.

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 was a member of the Awami National Party (“ANP”) and if refouled to Pakistan, his life would be in danger from his political opponents, namely people from the Mutahida Qaumi Movement (“MQM”) in Pakistan, assisted by the Pakistani authorities.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 10 June 2025.

9.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the Leave Application on its merits.

10.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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 11 November 2019. He merely stated in the affirmation that it was for leave to apply for judicial review against the decision of the Board as well as the Director.

Discussion

13.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. 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). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

14.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).

15.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

16.In assessing the appeal by the applicant, the Board held an oral hearing on 4 September 2019. The applicant was present and was given the chance to present his case to the Board in person.

17.Having carefully considered the applicant’s claims and evidence, including cumulatively, the Board’s considered that the applicant was not a witness of truth. The applicant’s claim was rejected in its entirety.

18.In particular, the Board did not accept that the applicant was ever a member of ANP, or that he was targeted for this reason by the MQM or anyone else. The Board did not accept that the shooting that led to the death of 3 of his colleagues had occurred. The Board also did not accept that the applicant was detained and mistreated in custody by the Federal Investigating Agency on his return to Karachi from Lahore, or falsely accused of being a terrorist.

19.Hence, the Board concluded that the applicant did not face any appreciable risk of serious or significant harm for the reasons claimed if he were to return to Pakistan.

20.Though the applicant’s claim was totally rejected, the Board also made findings on the viability of the applicant’s internal relocation. The Board was of the view that the applicant could safely relocate to a place such as Islamabad or Lahore, where the applicant claimed to have previously relocated temporarily without incident or threat, and it would not be unduly harsh for the applicant to do so.

21.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 based on the evidence available to the Board.

22.For the sake of completeness, this court noticed that the adjudicator, Mr Paul Stephen Fisher, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

23.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

24.Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Fisher was indeed a member of the Board and did have the power to determine the applicant’s petition.

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 2^nd day of September 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