Mehmood Asad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2295/2020

[2025] HKCFI 5417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2295 of 2020

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 oral submissions by the Applicant in open court;

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

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) 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 23 November 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Director of Immigration (the “Director”) dated 22 January 2019 (the “Director’s Decision”); and (2) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 November 2020 (the “Board’s Decision”).

2.The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed.

3.In the Form, the Applicant named the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas 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.

4.The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 9 September 2025 and the Applicant attended in person. The Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application. 

Background

5.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.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 or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant stated the following in support of the Leave Application:-

(1)  The Applicant claimed that the Board erred in §§25-35 of the Board’s Decision.  The Applicant accepted that he did not have written proof to show to the Board that he had tried to report his case to the police, but he said that was because the police did not file his case.

(2)  The Applicant contended that his opponents filed false report on him to the police but he cannot provide proof to the Board because his opponents are withholding the report. 

(3)  The Applicant said he cannot relocate anywhere in Pakistan because the police was looking for him for the false murder report on him.  He said whilst he stayed in other city for 3 months, he stayed mostly indoor and never went out.

(4)  The Applicant said Salma had already got married.

8.I do not consider these points meritorious.  In respect of the first point, I do not see any errors committed by the Board in §§25-35 of the Board’s Decision.  The Applicant has failed to identify or provide particulars of the alleged error(s).  In so far as the Applicant contended that the police in Pakistan could not protect him, the Board had addressed the issue comprehensively (§§27-34 of the Board’s Decision).  Again, I do not see any errors committed by the Board in this regard. 

9.In respect of the second point, the Board had duly considered the Applicant’s case.  The Board was entitled to give no weight to such evidence on the ground of hearsay and for the reasons explained (§§23-25 of the Board’s Decision). The Board’s reasoning is valid and sound, and I do not see any errors in the decision.

10.In respect of the third point about relocation, I have considered the Board’s reasoning in §§35-37 of the Board’s Decision.  The Board was entitled to come to that conclusion and the Applicant has failed to identify any errors in the reasoning. 

11.Finally, in respect of the last point, the fact that Salma had already got married actually reinforces the Board’s Decision in that there is no risk that Salma’s family would continue to threaten or harm the Applicant.  It should be noted that the basis of the Applicant’s claims is that Salma’s family wanted to stop the Applicant from seeing or marrying Salma.  Now that Salma had already got married, there would be no point for her family to look for the Applicant or harm him.

12.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.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  The Board was entitled, and indeed correct, to reject the claim based on the evidence.  The Board’s Decision 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.

13.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

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

Dated the 12^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