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

HCAL 1601/2025

[2025] HKCFI 4671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1601 of 2025

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 absent in open court;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION 

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 August 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 November 2024.  His application was filed on 14 July 2025, which is late for more than 8 months.  This issue will be dealt with below.

2.The applicant asked for a hearing.  However, he was absent at the hearing on 22 September 2025.  I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Pakistan.  He is an illegal immigrant and he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his material uncle, Muhammad Waheed and his cousin Naveed because of a land dispute.

4.Details of the applicant’s story can be found in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001601_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.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”).

6.The Director, by Notice of Decision dated 20 February 2024, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 25 April 2024, the Board conducted an oral hearing.  He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence and materials, the Board found the facts below.

(1)  The applicant made bare assertions without proof.  [35]

(2)  The applicant’s claim was a bare claim [61] and he did not have any legal interest in the land in dispute.  [63]

(3)  The applicant did not provide the Board with the land title record as the Board requested.  [73]&[74]

(4)  His enemy threated him to leave the land.  Since the applicant had left his country, his enemy would not need to pursue the matter further.  [81]

(5)  The applicant’s risk of harm if he returns to Pakistan is low.  Even if he returns and fears he would be at risk, he can live safely in most places in Pakistan.  [85]

9.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 14 July 2025 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of his application.

(1)   The Board’s Decision is not reasonable or fair.

(2)   The Board did not consider his BOR 2 right.

(3)   The Board had relied too much on the country of origin information without considering his personal background or experience.

(4)   The Board required him to respond to questions unreasonably.

DISCUSSION

12.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.      

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.It is obvious that the Board did not accept his allegation of the land dispute.  Even if his story were true, he had the option of internal relocation.

16.The applicant’s grounds under paragraph 11 are his bare assertions without any evidence in support.  They are not valid to challenge the Board’s Decision.

17.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

Dated the 23^rd 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