Muhammad Pervaiz v. Torture Claims Appeal Board

HCAL 1052/2021

[2026] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1052 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 26 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 June 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001052_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 November 2020 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by one JHANGHIR who was a supporter of the Pakistan Tehreek-e-Insaf (“PTI”). The applicant claimed that he was a supporter of the Pakistan Muslim League (Nawaz) (“PML(N)”). During a fight on 22 July 2018 between the supporters of the PML(N) and those of the PTI, JHANGHIR’s brother, ZOHAIB, was seriously injured. JHANGHIR blamed the applicant and three other PML(N) supporters and threatened to take revenge and kill the applicant and the other three.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 30 April 2026.

6.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

7.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

8.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 26 July 2021. The applicant only stated in the affirmation that he was applying for judicial review against both the Board’s Decision and the Director’s Decision.

Discussion

10.First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Hence, the Director’s Decision cannot be the subject matter of the Leave Application. This court will only deal with the applicant’s intended judicial review in respect of the Board’s Decision.

11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 May 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

14.As can be seen from the Board’s Decision, the Board had carefully analyzed the applicant’s claims and found that the applicant’s evidence was in parts inconsistent or implausible, at odds with objective country of origin information (“COI”), or based on nothing more than conjecture. The applicant admitted to the Board that he was a mere supporter and not a member of PML(N), and that all he did for the party was to work for it as a paid driver.

15.The Board also placed no weight on the DVD that the applicant submitted, purportedly showing a person being shot. The applicant could not even name the person in the video, whom he told the Board was his friend. However, the Board found that the applicant in fact provided the name of the person being shot to the Director, which showed the inconsistency of the applicant’s evidence. The Board found no credible evidence to connect the content of the video to the applicant, his alleged friend or JHANGHIR.

16.After due consideration of all the evidence, although the Board accepted that the applicant was employed as a driver by the PML(N), the Board found no credible evidence that he took any part in the party’s affairs. The Board also accepted that the applicant was present at a fight between PML(N) and PTI supporters on 22 July 2018 in which JHANGHIR’s brother ZOHAIB was injured, but the Board found no credible evidence that the applicant was involved in the fight or suffered any injury, or that JHANGHIR subsequently blamed the applicant for ZOHAIB’s injuries.

17.In view of the inconsistencies and implausibilities in the applicant’s account, the Board found that the applicant had failed to establish by reliable evidence that he was attacked in August 2018, or that PTI men came looking for him in Rawalpindi, that JHANGHIR ever threatened the applicant or sought to harm him, and that the applicant had suffered past harm at the hands of JHANGHIR or the PTI.

18.Moreover, the Board found from reliable COI that despite shortcomings in the police and widespread corruption within the police and government in Pakistan, reforms had been and were being made by the Pakistani government to improve the situation. The Board was of the view that reasonable state protection would be available to the applicant if he returned to Pakistan.

19.Further, the Board had explicitly found that, even if the Board had accepted that JHANGHIR had threatened to kill the applicant, the Board would have found that the risk to the applicant was confined to the local area where he had lived and that internal relocation to another part of Pakistan would mitigate or remove such risk. There was no evidence that the abilities of JHANGHIR or his associates to pursue the applicant extended beyond the bounds of the applicant’s immediate home area. The Board found that it would not be unreasonable or unduly harsh for the applicant, being young and of apparent sound health, with work experience as a driver, to relocate elsewhere in Pakistan to avoid the perceived risk.

20.Given its findings, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan. Thus, the Board found that the applicant’s non-refoulement claim failed on all the applicable grounds under the USM.

21.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

22.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

23.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 13^th day of May 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