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

HCAL 25/2022

[2026] HKCFI 1133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 25 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.   The Form 86 be amended by naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as the only putative interested party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 10 January 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following decisions:

a.   The Decision of the Director of Immigration (the “Director”) dated 21 May 2021 (the “Imm Decision”);

b.   Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 26 August 2021 (the “Board’s Decision”).  In the Board’s Decision, the Board rejected the Applicant’s appeal against the Imm Decision.  

2.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision.  

3.The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para. 45.  Thus, I treat the Leave Application to cover the Board’s Decision only.  

4.In the Form, the Applicant named both the Director and the Board as the proposed respondents and interested parties.  I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the only putative interested party.  

5.The Applicant requested an oral hearing for the Leave Application, which was schedule on 27 January 2026.  However, the Applicant was unable to attend the hearing as he was ill on that day.  Upon the Applicant’s request.  The hearing was refixed and held on 30 January 2026 which the Applicant attended (the “Hearing”).  At the Hearing, the Applicant said that there is no justice in Pakistan and the former prime minister is still in jail.  The Applicant will risk his life if he returns to Pakistan as his opposing party has bribed the police.  His father and brother have been abducted and there is no news of them. The Applicant sought an adjournment of the Hearing to allow him to gather more information from his family.  I rejected the application for adjournment as there is no good reason for postponing the Hearing.  Nevertheless, I will take into account the above information in considering the Leave Application.  

Background

6.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 is included below^[1] for reference.

Leave Application out of time

7.The Board’s Decision was issued on 26 August 2021.  However, the Form was only filed on 10 January 2022, around 4 months later and beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision, which is 3 months from the date of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

8.No application has been made by the Applicant for extension of time for him to bring the Leave Application.  No explanation has been provided by the Applicant for the delay, whether in the Form or the Affirmation.

9.In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.   The length of the delay;

b.   The explanation of the delay;

c.   The merits of the substantive application;

d.   The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.   The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para. 27

10.As I have pointed out above, there was no application for extension of time and no explanation for the delay.  Further, the Leave Application has no merits, for reasons which I will explain below.  Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.

Leave Application unmeritorious

11.In the Form, the Applicant raised various grounds in support of the Leave Application, some concern the Director in reaching the Imm Decision while the others concern the Board in reaching the Board’s Decision.  I will summarise those relating to the Board’s Decision below, as they are the grounds relevant to the Leave Application:

a.   The Applicant still has life danger in Pakistan;

b.   Many other asylum seekers chose to die in Hong Kong rather than returning to Pakistan because they wanted to save their lives here.  Many asylum seekers were killed upon return to their home countries by force;

c.   The Board failed to make sufficient enquiry before finalising the Board’s Decision;

d.   The Board failed to given sufficient chance to him to arrange relevant evidence for the non-refoulment claim and the appeal.  The Applicant is a torture claimant who has limited options to gather evidence before the Board and that he was under the custody of the Immigration Department in Hong Kong.

12.The relevant legal principles are well established.  The Court’s role 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 scrutinising 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

13.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

14.I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s situation, including his evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that the Applicant is not a witness of truth and that he has fabricated claims.  The Board did not accept the Applicant’s case in relation to his involvement in his family’s property development business and his family being targeted by the family members of his grandfather’s business partner: see the Board’s Decision paras. 8, 47-65.  The Board found that the Applicant’s evidence did not show that the Pakistani authorities had discriminated against him, or that any of the Khan Ahmed’s family had received treatment to his detriment.  The Applicant would be able to access adequate relevant state protection: see the Board’s Decision paras. 66-72.  In addition, the Board considered that there were internal relocation options available to the Applicant if the issue of relocation arises: see the Board’s Decision paras. 73-79.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras. 80-90.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

15.With respect to the Applicant’s complaints in paragraphs 11 (a) above, the Applicant’s condition has been fully considered by the Board in reaching the Board’s Decision, see paragraph 14 above.

16.As to paragraph 11 (b) above, the alleged situation of other individuals is irrelevant to the Leave Application.

17.As to paragraphs 11 (c) and (d) above, for the reasons explained in paragraph 14 above, I do not agree that the Board had failed to make sufficient inquiries before making the Board’s Decision.  The Board had given sufficient opportunities of the Applicant to present his case, bearing in mind the principles governing assessment of the Applicant’s credibility, including the fact that the Applicant must be understandably bewildered, frightened and desperate, and that he may not understand the process or the language at the different stages of the process: see the Board’s Decision paras. 49, 57-65.

18.As to the Applicant’s allegations in the Hearing, they were bare assertions without any support.  They cannot assist the Applicant’s Leave Application.

19.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

20.For the reasons stated above, I will dismiss the Leave Application.

Dated the 11^th day of March 2026

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