Luqman Muhammad v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1528/2021 on BabelCite. This High Court CFI judgment was delivered on 10 June 2026.
1. By way of Form 86 dated and filed on 4 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-
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HCAL 1528/2021 [2026] HKCFI 3424 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1528 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 4 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-
2.In respect of the applicant’s non-refoulement claim, the Torture Claims Appeal Board (“the Board”) made a decision dated 28 July 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 December 2018 (“the Director’s Decision”). At the oral hearing before this court on 4 June 2026, the applicant confirmed that only the Board’s Decision should be the subject matter of the Leave Application, and the date of the Board’s decision as stated in Form 86 was a mistake. 3.The Board’s Decision can be viewed in the following hyperlink:- 4.The Board decided 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 affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 5.The applicant named the Board / “Non-Refoulement Claims Petition Office” and the Director and as both the putative respondents and the putative interested parties in Form 86. 6.As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 7.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 8.As aforesaid, the applicant confirmed that the date of the Board’s Decision as stated in Form 86 was a mistake. 9.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 28 July 2021”. Late application 10.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 11.However, the applicant filed Form 86 on 4 November 2021, which was 3 months and 7 days after the Board’s Decision (made on 28 July 2021). The applicant was hence late for 7 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 12.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
13.The applicant did not explicitly make an application for extension of time when he filed the Leave Application. However, he did mention the reason for his delay in his supporting affirmation dated 4 November 2021. Thus, this court will treat it as an application for extension of time to file the Leave Application. 14.In the said affirmation, the applicant explained that he did not get the Board’s Decision, and was just informed by the Immigration Department that the decision had been issued to him. The applicant failed to understand why it was lost in the mail. After he was informed, he approached the Board and got the Board’s Decision. 15.At the oral hearing before this court on 4 June 2026, the applicant again said that he did not receive the Board’s letter containing the Board’s Decision. He could not remember when he received the Board’s Decision. However, when this court asked him where he finally obtained the Board’s Decision, he replied that he received it in his mailbox and he did not know that he was late. 16.Although the delay of 7 days is not very substantial, the reasons given by the applicant for being late in filing the Leave Application were clearly unsatisfactory. The explanations were inconsistent between his affirmation and his oral evidence, where he allegedly received the Board’s Decision in person and in his mailbox respectively. Moreover, the applicant said at the oral hearing that he did not know that he was late in filing the Leave Application. However, ignorance of the court’s procedures is generally not an excuse. 17.More importantly, there is no merit of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The application for extension of time to file the Leave Application is refused. 18.The Leave Application can therefore be dismissed on the ground of being made out of time alone, but this court will discuss the merits of the Leave Application below. The applicant’s case 19.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. 20.In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by supporters of Pakistan Muslim League (Nawaz) (“PMLN”) in his village due to his change of support from PMLN to Pakistan Tehreek-e-Insaf (“PTI”). Oral hearing 21.The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 June 2026. 22.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he changed his party from PMLN to PTI. When this court referred him to his supporting affirmation dated 4 November 2021, where he had stated some grounds, he said that he sought help from a friend in preparing the affirmation for him, in that he mentioned the situation in Pakistan and his friend put it down in writing. However, he could not elaborate on the grounds stated in his affirmation but he would adopt them. Grounds for judicial review 23.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). 24.As aforesaid, the applicant relied on the grounds stated in his affirmation dated 4 November 2021, but he could not elaborate on them. 25.In the said supporting affirmation, the applicant mentioned a few matters, which are summarised as follows:-
Discussion 26.First of all, the applicant had confirmed that the Board’s Decision was the only subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 27.In Ground (1) as summarised above, the applicant asserted that his case had not been determined fairly, and the Board had not taken his unique situation into account fairly and sequentially. However, no particulars had been provided as to what unique situation of his that the Board had failed to take into account, and how or why the Board’s Decision was unfair. 28.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 29.Thus, the applicant’s general allegations that his case had not been determined fairly, and the Board had not taken his unique situation into account cannot help him at all. 30.The applicant alleged in Ground (2) that there was a lack of legal assistance. However, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation. 31.As to Ground (3), it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). 32.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all. Thus, the lack of language assistance is not an arguable ground. 33.In Grounds (4) and (5), the applicant asserted that there was wrongful case management as the Board rejected his case without having first made enquiries with him or gave him an opportunity to clarify such issues, or to explain or elaborate himself. These allegations are simply untrue. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 23 June 2021. The applicant was present and was given the opportunity to present his case to the Board in person. 34.It is clear from paragraphs 20 to 29 of the Board’s Decision that the Board questioned the applicant extensively during the Board’s hearing to understand his case better. The applicant had indeed been given sufficient opportunity to clarify and elaborate on any aspects of his claim. The fact that the Board rejected his claim for non-refoulement protection does not mean that no or insufficient enquiries had been made. 35.Thus, the applicant’s assertion that the Board had determined his case without having first made enquiries with him or allowing him an opportunity to explain himself is plainly unfounded. 36.Moreover, the Board did not reject his claims because the Board had challenged his credibility. As can be seen from paragraph 38 of the Board’s Decision, although the Board had doubts about the applicant’s claims regarding PTI, the Board did not consider it necessary to make a finding as to the genuineness of these claims. 37.In the circumstances, this court finds that none of the matters that the applicant raised in his affirmation dated 4 November 2021 constitutes any valid ground for challenging the Board’s Decision. 38.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). 39.Thus, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 40.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection. 41.The Board had laid out in paragraphs 31 to 36 of the Board’s Decision its assessment of the applicant’s case, and it is not necessary for this court to repeat the same here. 42.In gist, the Board found that the applicant was unable to provide any detail about his claims when asked to do so. His evidence about his role with PTI was also vague. His claims about him being targeted as a PTI member were not consistent with country of origin information (“COI”). The applicant also gave an inconsistent account of a number of matters when he was interviewed by the Immigration Department. Given the vagueness and inconsistency about the applicant’s claims regarding PTI, the Board had doubts about the credibility of his involvement with the party. 43.However, the Board did not consider it necessary to make a finding as to the genuineness of the applicant’s claim in this regard, since the Board found that even if the applicant’s claimed involvement with PTI was accepted as true, COI indicated that PTI was in government both at the provincial and national level, and that there was no evidence that PTI members were targeted for harm by PMLN. 44.The Board also noted that applicant said his problem was with PMLN supporters in his village. Given that PTI was in government, the Board did not accept the applicant’s claim that he would be unable to obtain state protection should he be targeted for harm at the local level. If the applicant was truly an important supporter of PTI in his village, the change of government would enable him to assess the protection of the police or the army. 45.Moreover, the Board explicitly stated in paragraph 40 of the Board’s Decision that if the applicant’s claims to fear serious harm or death in his village were accepted as credible, the Board would find that the applicant could reasonably be expected to relocate to Multan to avoid such harm. The Board made this finding because the applicant had lived there for some three months without being harmed in any way, and there was no credibility that he would be located by PMLN there. 46.The Board also considered the applicant’s claim that Pakistan in general was not safe. While the applicant did not specifically claim to fear harm on the basis of any such general insecurity, the Board noted that had he done so, the Board would find that COI did not support a claim that he would face harm because of general insecurity in the country. 47.Thus, the Board found that the applicant had not established that he would face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution if he returned to Pakistan. 48.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 49.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. 50.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 51.For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused. The Leave Application is dismissed for being made out of time and also for lack of merits. Dated the 10th day of June 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 [1] The paragraph numbers correspond to the paragraph numbers in the applicant’s affirmation dated 4 November 2021. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment