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

HCAL 50/2022

[2026] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 50 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 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 13 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 29 March 2021 (the “Imm Decision”);

b.   Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 30 December 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3.The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para. 45.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 putative respondents, and did not name any interested party.  I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the putative interested party.  

5.The Applicant requested an oral hearing for the Leave Application, which took place on 27 January 2026 (the “Hearing”).  At the Hearing, the Applicant said that the situation in Pakistan has worsened.  His father passed away after seeing the situation.  His family is still in danger, including his mother and his younger brother.  

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.

Discussion

7.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 Board’s Decision was not reasonable or fair;

b.   The Board acted unreasonably and was procedurally unfair in placing too much reliance on the country of origin Information (the “COI”) but failed to take the Applicant’s personal background and experience into account;

c.   The Board was procedurally improper and/or unfair when it assessed whether to accept the Applicant’s explanation, and unreasonably required the Applicant to respond to questions which the Applicant was not in a position to offer any response.  The Board failed to take into account the nexus of political parties in Pakistan, making the alleged persecution effectively persecution by the state.  

8.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, 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. 

9.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.

10.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 the Applicant’s evidence to be lacking in details, inconsistent and/or defy logic.  The Board found that the center piece of the Applicant’s story failed to stand.  The Bound found that the Applicant’s risk of being subject to ill-treatment or being killed by his uncle is low: see the Board’s Decision paras. 16-18, 28.  After considering all the relevant COI, the Board found that there is adequate state protection to the Applicant, including protection by the Pakistani police.  The Appellant had avenues to seek redress if he is not satisfied with the response by the Pakistani police: see the Board’s Decision paras 29-34.  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. 35-37.  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. 19-47.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision, whether as alleged by the Applicant in the Form or otherwise.

11.As to the current situation in Pakistan as alleged by the Applicant in the Hearing, it was only a bare assertion on the Applicant’s part.  I do not consider the assertion to assist the Applicant’s Leave Application.

12.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

13.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