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

HCAL 848/2020

[2025] HKCFI 4557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 848 of 2020

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 (Non-Refoulement Claims) Lewis Law:

1.  The Applicant’s Form 86 be amended to name the Board as the only putative respondent, the DI as the only putative interested party and the Board’s Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

1.The Applicant applied for leave to commence judicial review by a Form 86 filed on 8 May 2020 (“Form 86”) against the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 30 March 2020 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].  

2.The Board’s Decision was on appeal/petition from a decision of the Director of Immigration (“the DI”) dated 12 December 2017 (“the DI’s Decision”).  The DI and the DI’s Decision were also named as the putative respondent and the decision sought to be reviewed in the Form 86.  It is trite that after the Board’s decision on an appeal/petition is made, the DI’s original decision is superseded and should no longer be the subject of judicial review proceedings.  In the oral hearing of this application, after hearing my explanation on the law, the Applicant understood and confirmed he would only seek to review the Board’s Decision.  On my own motion, the Applicant’s Form 86 is amended as per paragraph 1 of my order above.

3.The Applicant is a national of Pakistan.  His non-refoulement claim was based on the fear of being harmed or killed by the family members of a man accidentally killed by him when he attempted to make a celebratory gunshot during a wedding.  A relative of the deceased person was said to be a politician.  It was also said a First Information Report (“FIR”) alleging murder had been filed against him.

4.After conducting an oral hearing and assessing the evidence, the Board found that (1) the Applicant’s fear was not on account of one of the “Convention Grounds” under the 1951 Refugees Convention; (2) there was no substantial ground to believe that the Applicant would be subject to risks of torture or cruel and inhumane treatment if he returned to Pakistan; (3) it was obviously necessary for the Pakistani Police to investigate the death of the person killed; (4) there was no evidence that the Applicant’s right to life under Article 2 of the Hong Kong Bill of Rights (“BOR2”) would be violated.   The claim was therefore rejected. 

5.The Applicant has set out a few grounds of judicial review in the Form 86 against the DI’s Decision and one ground against the Board’s Decision.  In view of the position stated in paragraph 2 of these Observations for the Applicant, I will only focus on the ground against the Board’s Decision.

6.The Applicant complained that the Board had failed to make sufficient enquiry before finalizing its decision.  He said the Board stated that he had failed to provide credible evidence, and it was a failure to appreciate the fact that people in his position had limited option of bringing evidence with them to Hong Kong such that sufficient chance should have been given to them. 

7.The Board did not query the Applicant’s credibility in the Board’s Decision.  The ground as formulated in the Form 86 was obviously inapplicable to the Applicant’s situation.  Having discussed with the Applicant during the oral hearing of this application, I appreciate that the Applicant meant the Board had not sufficiently inquired into how the murder allegation in the FIR might affect his right under BOR2 and did not give him sufficient chance to obtain a copy of the FIR for the Board’s consideration.

8.However, the existence of the FIR was mentioned during the DI’s screening interview, which was before the DI’s Decision was made (see paragraph 44 of the Board’s Decision).  The Appellant said he would try obtaining a copy of the FIR at the time of the screening interview, yet he said he only relied on the information supplied to the DI when he appealed/petitioned against the DI’s Decision to the Board, and even confirmed with the Board that he had nothing to add (see paragraphs 45 and 47 of the Board’s Decision).  At the end no copy of the FIR was presented to the Board.  It does not seem the Applicant had impressed upon the Board that he needed further time to obtain a copy of the FIR and submit it during the Board’s hearing of his appeal/petition.

9.The Applicant mentioned the fact that he was detained around the time of the Board’s hearing, but later said he was not sure.  He said he had wanted to rely on his girlfriend to retrieve a copy of the FIR but his girlfriend was detained too.  In any event, I do not think the mere fact of detention would prevent the Applicant from trying to highlight the importance of the FIR to the Board and giving practical suggestion how a copy of it might be obtained before the Board’s Decision was made.  After all the Applicant had a hearing and there is no record that such a request was made.

10.More importantly, the Board did not omit the existence of the FIR.  The Board took it into account, but did not consider the mere filing of a criminal allegation would subject the Applicant to real and substantial risk of being arbitrarily deprived of his life (i.e. violation of his BOR2 right).  Viewed in this light, even if the Applicant had been able to provide a copy of the FIR to the Board, the result would not have been different.   

11.I have reviewed the Board’s Decision vigorously.  In my judgment, the decision was supported by factual findings and the Board had conducted an anxious scrutiny of the available evidence.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

12.The leave application to apply for judicial review is thus dismissed.

Dated the 8^th day of October 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