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

HCAL 1662/2021

[2026] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1662 of 2021

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION 

1.The applicant applies for leave to apply for judicial review of the Decision dated 16 November 2021 of the Director of Immigration (“the Director’s Decision”) and the Decision of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision. The Director’s Decision has been superseded by the Board’s Decision.

2.The applicant asked for a hearing. However, he was absent at the hearing on 1 April 2026. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Pakistan. He is an illegal immigrant. He lodged a non-refoulement claim with the Director on the basis that, if refouled, he will be harmed or killed by his creditors because he was unable to repay his debts.

4.Details of his claim are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001662_2021_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 16 June 2021, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)  There was no evidence that the creditors had inflicted any assaults on him as he claimed. [28]-[29]

(2)  There was no evidence that the state was involved. [30]

(3)  The risk of torture, if he returns to Pakistan, is very remote. [32]

(4)  There was no evidence to show that he has a well-found fear of being persecuted if he returns to Pakistan. [35]

(5)  It is not accepted that he will face a genuine and substantial risk of being subjected to ill-treatment if he returns to Pakistan. [39]

(6)  BOR 2 risk is simply not engaged. [46]

(7)  Internal relocation is viable. [55]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 7 December 2021 for leave to apply for judicial review of the Board’s Decision.

11.The applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

15.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

16.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 29^th day of April 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