Rizwan Muhammad v. Torture Claims Appeal Board

HCAL 1029/2021

[2026] HKCFI 3606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1029 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.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  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 21 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 26 May 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/HCAL001029_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to show that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 June 2020 and confirmed the same, which rejected his non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party and spelt the Board’s name wrong. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

4.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by the supporters and members of the Pakistan Muslim League (Nawaz) due to political dispute, as he was a supporter of the opposition party Pakistan People’s Party (“PPP”).

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 18 June 2026.

8.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.

9.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

10.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).

11.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 July 2021. He only mentioned in the said affirmation that he was not satisfied with the Board’s Decision and he could not go back to his country because his life was not safe there.

Discussion

12.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).

13.Thus, this court will 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.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 22 April 2021. The applicant was present and was thus given the opportunity to present his case to the Board in person.

15.As can be seen from paragraph 35 of the Board’s Decision, the Board had provided its full reasoning in rejecting the applicant’s claim for non-refoulement protection.

16.In gist, the Board found no substantial ground to believe that the applicant’s risk of being harmed or killed by his enemies upon returning home was real and foreseeable. The applicant claimed that he had been abducted and ill-treated on one occasion in 2013. The identities of the perpetuators and their reasons for abducting and ill-treating him were unknown. The injuries the applicant sustained were not serious and did not attain a minimum level of severity. The applicant was not ever a member and was no longer even a supporter of PPP. The applicant adduced no further evidence to show that his enemies would actually harm him if he was refouled back to Pakistan.

17.Moreover, the Board was convinced that the Pakistan police would be willing or able to afford protection to the applicant if he sought assistance from the state. The Board was also of the view that there were alternative places of safety in Pakistan for the applicant where he could avoid the alleged risk of violence or threats from his enemies.

18.Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the available grounds under the USM.

19.The assessment of evidence 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 danger had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

20.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.

21.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

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

Dated the 24^th 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