Shahid Mudasar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1829/2020

[2025] HKCFI 5373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1829 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 the Applicant being absent 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 the Director of Immigration as the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 14 September 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 September 2020 (“the Board’s Decision”), which confirmed the decision of the Director of Immigration (“the Director) dated 31 July 2019 (“the Director’s Decision”) rejecting his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM). 

Background

2.The Applicant’s personal background, together with the incidents alleged in support of his claim that he would be harmed or killed by members of the Pakistan Muslim League-N (PML(N)), were set out in detail in the Board’s Decision.  The Board also recorded the relevant immigration and procedural history of this case as part of its determination.  It is unnecessary to repeat those matters here, and for completeness reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion 

3.Having considered the Board’s Decision, I am not persuaded that the Applicant’s proposed judicial review is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  As a result, I have refused leave.  In so doing, I have reminded myself of the enhanced standard of scrutiny required by law, in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.Apart from expressing disagreement with the Board’s Decision and reiterating that his life is in danger, the Applicant has not identified or explained any matter of substance capable of establishing an error of law, irrationality, or procedural unfairness in the Board’s determination.  Conversely,the Board reached its determination squarely within the limits of its lawful authority, after undertaking a thorough evaluation of the relevant evidence against the governing legal principles:

(1)  The Board decided to convene an oral hearing, during which the Applicant adopted he information contained in the hearing bundle, the NCF, the interview record, and the Notice of Appeal as evidence in support of his non-refoulement claim.  The hearing was conducted with the assistance of an interpreter.  The Board was satisfied as to the standard of interpretation, and the Applicant was able to communicate effectively, understand the proceedings, and participate in a meaningful way.  The Board questioned the Applicant and discussed his claim under all applicable grounds, ensuring that he was afforded a proper opportunity to make submissions in full. 

(2)  The Board noted that the Applicant had consistently claimed fears of harm from supporters of the PML(N), arising out of a dispute connected with the first shooting of his uncle.  Both the Applicant and his uncle were office-holders of the Pakistan People’s Party (PPP).  The Board found multiple material inconsistencies between the Applicant’s claims, the information contained in the evidence, and the FIR.  The Applicant’s explanations for those inconsistencies were unpersuasive, leading the Board to conclude that he was not a credible witness.

(3)  The Board accordingly rejected all of the Applicant’s claims relating to his or his family’s members’ involvement with the PPP.  It rejected his assertions concerning both the first and second shootings, as well as his claim that he or his brother had ever been arrested in relation to the second one.

(4)  The Board further rejected all of the Applicant’s allegations that supporters of PML(N) had threatened, assaulted, or sought him in his hometown or elsewhere in Pakistan.  It also rejected his claims of relocation to KPK or to Punjab, and his assertion that he came to Hong Kong in fear of harm from PML(N) supporters.  The Board considered that the Applicant had fabricated these claims in order to create a basis upon which to apply for non-refoulement protection.  

(5)  On the evidence available, the Board held that the Applicant had failed to establish a well-founded fear of persecution.  It was unnecessary to assess whether the harm allegedly feared by the Applicant was for a Convention reason.  For the same reason, the Board found that the Applicant did not face a real risk of torture upon return.  It was likewise unnecessary to assess whether the State would acquiesce in such harm, or whether there was a consistent pattern of gross, flagrant, or mass violations of human rights. 

(6)  The Board also did not find that the Applicant faced a real risk of being subjected to torture or CIDTP under BOR 3, nor a real risk of being deprived of his right to life under BOR 2.

5.In the absence of any valid public law grounds being established by the Applicant, the Court should not interfere with the decision of the Board as the primary decision-maker.  Judicial review is not intended to serve as an additional avenue of appeal for the Applicant (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

6.In light of the foregoing, the Leave Application is dismissed.

Dated the 10^thday 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