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

HCAL 1710/2020

[2025] HKCFI 5362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1710 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 documents and oral submissions by the Applicant in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration 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 24 August 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of (i) the Director of Immigration (“the Director)’s decision dated 6 December 2018 (“the Director’s Decision”); and (ii) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 31 July 2020 (“the Board’s Decision”). The Board affirmed the Director’s rejection of the Applicant’s claim for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by local workers of the Pakistan Muslim League Nawaz (PML(N)) in Pakistan if returned, together with the relevant immigration and procedural history, were set out comprehensively in the Board’s Decision. It is unnecessary to repeat them, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.For the reasons set out below, I am not satisfied that the Applicant’s proposed application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). I have therefore refused leave.

4.First, the Director’s Decision is not one that is amenable to judicial review (see Re Moshsin Ali [2018] HKCA 549 at §45). As for the Board’s Decision, the Applicant has not identified any valid grounds for judicial review. Neither the Form 86 nor the supporting affirmation discloses any procedural or other public law error allegedly committed by the Board (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142). I have reminded myself, given the seriousness of the issues involved, of the need to apply the enhanced standard of scrutiny required by law in reviewing the Board’s Decision (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

5.The Board, as the primary decision-maker, assessed the evidence, COI information, risk of harm, availability of state protection, and viability of internal relocation, and made determinations within its remit as follows:

(1)  The Board considered that the risk of torture faced by the Applicant was low and accordingly found that he had failed to establish a case under that head. The Board had taken account of the gist of the Applicant’s case, namely that he had been assaulted by PML(N) workers on two occasions. However, the Board found that his physical and mental condition had not been adversely affected. Based on the level of injuries suffered, the Board considered that the individuals associated with PML(N) did not intend to kill the Applicant. The Applicant was able to arrange travel to Lahore and subsequently escape to China and then to Hong Kong.

(2)  The Board also held that there was no evidence to suggest that the feared treatment was instigated by, carried out with the consent of, or acquiescence in by government official or other persons acting in an official capacity. The Applicant failed to provide any evidence to substantiate his allegation that the individuals associated with PML(N) were connected to government authorities or officials in Pakistan. The Board further found that the Applicant had never been accused, charged, arrested, detained or imprisoned by the government. The political difference relied upon by the Applicant did not involve the state. He was not targeted by the government for ill-treatment or torture upon his return.

(3)  As for the risk of persecution, the Board concluded that the risk faced by the Applicant was equally low and remote. Based on the information provided by the Applicant, the Board did not accept that he had a well-founded fear of being persecuted. While the Applicant claimed that PML(N) was in power, it did not necessarily follow that the individuals involved were connected to the government or would be in a position to persecute him. Moreover, the feared ill-treatment was private and personal in nature. The matter did not involve any Convention-related grounds.

(4)  The Board noted that the Applicant’s allegation that he had reported the matter to the police but was turned away. He believed that the police were under the influence of PML(N). He expressed the view that the PML(N) affiliates remained highly influential and that systemic change would take time. However, the Board found that, notwithstanding the Applicant’s belief that the police could not assist him, COI indicated that he could lodge a complaint to the Ombudsman to address his grievances concerning the alleged police inaction.

(5)  Moreover, based on the information provided by the Applicant and for the reasons set out above, the Board held that the Applicant failed to establish a case under the head of BOR 3 Risk. The Board did not accept that the ill-treatment encountered by the Appellant reached the minimum level of severity. In addition, the Applicant’s family members remained safe after his departure from the country. This supported the Board’s finding that the individuals associated with PML(N) did not intend to kill or seriously harm the Applicant or his family.

(6)  In addition, the Board did not consider that the Applicant had established a case under the head of BOR 2 Risk. Neither the Applicant nor any of his family members had ever been accused, charged, interrogated, arrested, detained, imprisoned, killed, or harmed in Pakistan. The incidents encountered by the Applicant did not involve any breach of law, let alone offences punishable by death. Further, no charges were ever laid against him by the government.

(7)  The Board also noted that internal relocation was a viable option to the Applicant. It took into account that the Applicant had, in fact, stayed in Lahore for about three months without incident. Considering his age, level of education, and work experience, the Board found that it would not be unreasonable or unduly harsh for him to relocate to other regions of the country.

6.In view of the foregoing findings, the Board concluded that the Applicant had not established his claim under any of the applicable grounds. The Board’s determinations were made within the scope of its mandate, followed by a careful and reasoned assessment of the evidence and the relevant legal framework. Absent any arguable basis to impugn the legality, rationality, or procedural fairness of the decision, there is no justification for the Court to interfere with the Board’s exercise of its adjudicative function (see Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

Conclusion

7.Accordingly, I make an order that the Leave Application be dismissed, rather than allowing it to be withdrawn as requested by the Applicant.

Dated the 5^th day of December 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