Arshad Muhammad v. Torture Claims Appeal Board

HCAL 1996/2020

[2025] HKCFI 5393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1996 OF 2020

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 oral submissions by the applicant 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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 August 2020”.

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 5 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The Decision(s) of the Director of Immigration dated 5^th October 2018”; and

(2)  “The Decision of the Adjudicator dated 21^st August 2020”.

2.The Torture Claims Appeal Board (“the Board”) made a decision dated 21 August 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 October 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001996_2020_files/the_Board's_Decision.pdf

3.At the oral hearing before this court on 29 August 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed with this court that the Leave Application was in respect of the Board’s Decision only.

4.Thus, it is no longer necessary for this court to deal with the Director’s Decision in the Leave Application.

5.The Board found that the applicant had failed to show substantial grounds for believing that he would face any real risk on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendments

6.In Form 86, the applicant named “The Director of Immigration; and The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents. However, as confirmed by the applicant at the oral hearing, only the Board’s Decision should be considered in the Leave Application. Thus, the putative respondent should only be the Board.

7.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

8.The applicant did not name any putative interested party, when the Director should be so named.

9.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

10.As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision. Thus, on this court’s own motion, it is so amended.

The applicant’s case

11.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.

12.In sum, the applicant raised his non-refoulement claim because if refouled to Pakistan, he feared he would be harmed or killed by his paternal uncle, Fadar Raheem, due to a land dispute.

Oral hearing

13.The applicant requested for an oral hearing of the Leave Application and his case was heard on 29 August 2025.

14.As aforesaid, the applicant first confirmed that the Leave Application was in respect of the Board’s Decision only.

15.The applicant annexed a document with the title “Grounds on which Relief is sought” to his supporting affirmation dated 5 October 2020. When this court asked the applicant to elaborate on the grounds stated in the said document, the applicant merely said that he had a land dispute but could not elaborate on the grounds asserted therein.

Grounds for judicial review

16.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).

17.The contents of the said document with the title “Grounds on which Relief is sought”. are reproduced as follows:-

“1. The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

18.The contents of the said document as stated above were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

19.First of all, some of the above grounds were directed at the Director. As mentioned, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review. The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

20.Paragraphs 2, 3 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.

21.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

22.As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

23.In any event, the Board did assess the applicant’s risk of right to life. In fact, in view of the applicant’s lack of credibility, the Board found that the applicant had not shown, even to the low standard required, that there was a real chance or risk or substantial grounds for believing that he would face any harm if he returned to Pakistan, and that he would face a genuine risk of a threat to his right to life.

24.The applicant further asserted in paragraph 1 of the grounds that the Board’s adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

25.This complaint is simply untrue. The applicant filed his Notice of Appeal/Petition to the Board on 22 October 2018. This means that the applicant had more than one year and seven months to prepare any relevant evidence that he would like to adduce and present to the Board at its hearing, which was finally held on 2 June 2020. Moreover, if he did have further evidence to produce, he could have applied to the Board for more time to adduce evidence if he needed it.

26.Thus, it is absolutely groundless for the applicant to complain that the Board’s adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

27.In the circumstances, this court finds that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

28.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).

29.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

30.As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully but found that there were very substantial differences in the accounts given by the applicant on different occasions.

31.The applicant’s story given in his Non-refoulement Claim Form differed from that given in the screening interview, and again differed significantly in his testimony before the Board. His case depended entirely upon his own testimony. He had produced no supporting evidence, either in the form of newspaper reports, death certificates, medical reports, first information reports or land ownership documents.

32.Even allowing the lack of education and sophistication and some difficulty with interpretation, the Board was satisfied that such factors could not account for the three radically different accounts he had given. The fundamental differences between his accounts on different occasions demonstrated a fundamental unreliability on the applicant’s part. The Board therefore found itself unable to attach any credence to the evidence of the applicant.

33.In the premises, the Board was satisfied that there was no reliable evidence that the harm the applicant claimed to fear would materialise if he returned to Pakistan.

34.Even if, contrary to its finding as summarised above, there were some risks of harm if he was to return to his home area, the Board found that the applicant could obtain protection from the Pakistani authorities. The Board also found that the applicant, as a man in apparent good health who had lived independently overseas and had work experience in farming, vegetable market and construction business, could reasonably and safely live elsewhere in Pakistan such as Lahore or Karachi.

35.In view of the its findings, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

36.The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

37.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.

38.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

39.For reasons aforesaid, the Leave Application is dismissed.

Dated the 11^th day of November 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