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

Case No.HCAL 1175/2020[2025] HKCFI 4019

Court

High Court CFI

Date04 Sep 2025

Judge—

Case Document

100%Judiciary

HCAL 1175/2020

[2025] HKCFI 4019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1175 of 2020

BETWEEN
	Tayyab Muhammad	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

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

Following;

consideration of documents only; or

consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1. Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 June 2020 (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 21 May 2020 (the “Board’s Decision”).

2.In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

3.The Applicant requested an oral hearing for the application. The hearing took place on 28 July 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant at the address he provided in the Form in advance. On 24 and 25 July 2025, attempts were made to contact the Applicant and remind him of the hearing by phone at the number provided by the Applicant on the Information Sheet but in vain. In the premises, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] 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 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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant set out the grounds which can generally be summarized as follows:-

(1)  There was procedural impropriety because the Board had failed “to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”. The Applicant cited JKF CACV 103/2014 in support.

(2)  There was procedural impropriety because the Board had failed “to conduct sufficient inquiry into the relevant country of origin conditions” and failed “to consider that [the Applicant] would face serious risk from [his] enemies who will harm [him] because of [his] political and statistical view which consider a serious matter for which he would definitely harm [him] upon refoulement”.

(3)  There was procedural impropriety or irrationality in that the Board had failed to provide reasons “for assessment of Lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk”.

(4)  There was error or misdirection in law in that the Board had failed “to take into account the considerations of psychological strain and threats to [the Applicant] personally or threats to [the Applicant] directly to kill [him]”.

(5)  There was procedural impropriety because the Board had failed to consider the Applicant’s fear that his enemies still fear for him. The Applicant could not relocate to other places because they could easily trace him wherever in his country.

(6)  There was no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP (as defined below) upon refoulement.

7.I do not consider any of the above grounds meritorious. I shall briefly state my reasons hereinbelow.

8.In relation to point (1), the torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) has now been incorporated in Part VIIC of the Immigration Ordinance (Cap. 115). Contrary to the Applicant’s assertion, the Board had clearly cited and applied the correct legal principles relating to the torture claim (§§20-22, 112-147, 149-151, 155-157, 160-165 of the Board’s Decision). The Applicant has failed to elaborate the alleged procedural impropriety. In any event, the said paragraph 2 relied upon is only a comment explaining the nature of Article 2 of the Convention.

9.The Applicant also complained that the Board had focused too much on how the reforms introduced in Pakistan have improved the situation, rather than whether such alleged improvement was effective.

10.I do not consider such Applicant’s contention meritorious. To start with, it is important to note that the Board had found, correctly in my view, that the core parts of the Applicant’s evidence are unworthy of belief and no credence should be attached to the core elements of the Applicant’s evidence. The Board further found the Applicant not to be a credible witness and his evidence in general is not credible (§120 of the Board’s Decision). Accordingly, whether the alleged improvement in Pakistan is effective or not would not affect the outcome of the claims. In any event, the Board’s observation on Pakistan’s situation based on the COI materials is fair and I do not see any errors therein (§§121-128 of the Board’s Decision). Equally, the Applicant has completely failed to provide particulars or explain the allegation.

11.The reliance of JKF is misconceived. In that case, the Board had failed to consider and apply the concept of “extended acquiescence”. In the present case, the Applicant has failed to identify precisely what the Board was alleged to have failed to consider. The Board had applied the correct legal principles in coming to the conclusions.

12.In relation to point (2), the Applicant’s criticism that the Board had failed to conduct sufficient inquiry relating to the COI materials is vague and lacks particulars. The Board had plainly considered the relevant COI (see for instance §32 of the Board’s Decision). The Applicant has not explained what inquiry he alleged the Board ought to have made and which it had failed to do so.

13.In so far as the Applicant contended that the Board had failed to consider the risk the Applicant would allegedly face from his enemies, such contention is wholly devoid of merits. The Board had comprehensively considered the evidence and dismissed the Applicant’s case.

14.In relation to point (3), contrary to the Applicant’s contention, the Board had clearly considered and explained the basis of rejecting the Applicant’s claim under “BOR 2” (§§112-147, 149-151, 166-170 of the Board’s Decision).

15.In relation to point (4), it is unclear precisely what “psychological strain and threats” the Applicant was referring to. As mentioned above, the Board had considered the evidence and rejected the Applicant’s case. The Board was entitled to come to that conclusion. The Board had to and did in fact assess the evidence objectively.

16.The Applicant’s contention in point (5) is incomprehensible. There was no allegation that the Applicant’s alleged enemies fear the Applicant, and such allegation would be contrary to the Applicant’s case. If the Applicant meant his enemies are still looking for him, such contention is again unmeritorious. The Board had in fact comprehensively evaluated the evidence and concluded that the Applicant’s case is unworthy of belief.

17.I also do not see any error in the Board’s Decision relating to internal relocation (§§129-141 of the Board’s Decision). Neither has the Applicant explained or provide any particulars in support of this ground.

18.Finally, the Applicant’s contention in point (6) above is vague and lacks particulars. I am satisfied that the Board was entitled to come to the conclusions it did based on the evidence and its analysis of the same.

19.In short, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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.

20.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

21.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 4^th day of September 2025

(Allen LEE)
for Registrar, High Court

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 the Applicant’s solicitors must:
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)).		Sent to the Applicant on 4/9/2025 Tayyab Muhammad Applicant’s ref. no: Nil		Sent 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 4/9/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16219/19/8/81/P3186 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4/19 (formerly as RBCZ 10217/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)