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

HCAL 3278/2019

[2025] HKCFI 3630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3278 of 2019

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 Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION 

1.The applicant applies for leave to apply for judicial review of the Decision dated 24 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. He appeared before the Court on 21 July 2025.

The applicant

3.The applicant is a national of Pakistan. He entered Hong Kong illegally from China on 19 April 2019 and surrendered to the Immigration Department. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Mr Konain Shah, the president of the village Shia community because his family had converted from Shia to Sunni Islam. Konian tried to persuade his father to re-converted back to Shia. His father refused. For that reason, he was slapped by Konian. He fled Pakistan for Hong Kong. Details of his story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003278_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

4.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By way of Notice of Decision dated 30 July 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated; besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

6.The applicant appealed the Director’s Decision to the Board. On 15 October of 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence.

7.Having considered the evidence, the Board found that the applicant’s evidence was not reliable because of inconsistencies and discrepancies in his evidence [34]; that state protection will be available to him [56]; and that internal relocation is viable [57] if he returns to Pakistan. For those reasons, the Board dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

8.The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision.

9.In his affirmation in support of his application, the applicant did not raise any ground to challenge the Board’s Decision.

DISCUSSION

10.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he was unable to point out what was wrong with the Board’s Decision. He wanted the Court to review it.

12.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

13.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 16^th 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