Mir Moazzam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 608/2023

[2026] HKCFI 5274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 608 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

1.  The Applicant’s Form 86 be amended to name the Board as the putative respondent and the Director of Immigration as the putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 24 April 2023 (“Form 86”), the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 3 April 2023 (“the Board’s Decision”). The Board’s Decision was made after oral hearings on 19 February 2019 and 28 June 2019 of the Applicant’s appeal/petition from the Director of Immigration (“DI”)’s first-tier decision dated 28 December 2017. A copy of the Board’s Decision can be seen by the following hyperlink[1].

2.Technically, the Board’s Decision was only about DI’s assessment of risks under the Hong Kong Bill of Rights (“BOR”) and persecution risk under the Refugees Convention, as the Applicant’s claim under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment was separately assessed by the DI in 2012 and no timely petition was submitted under the then applicable rules to challenge that assessment back in 2012. The starting point of DI’s subsequent assessment in 2017 and the Board’s Decision in 2023 should be the further claim forms submitted by the Applicant on 24 July 2013 and 28 March 2017 under the Unified Screening Mechanism (“USM”).

3.The Applicant is a national of Pakistan. His non-refoulement claim under the USM was based on the accusation against him in relation to the murder of Dildar Hussain, a senior member of a political party named the Pakistan Muslim League (Narwaz) (“PML(N)”), in 2001. The Applicant said he was detained and assaulted because of that accusation against him, and “First Information Report” (“FIR”) had been filed to initiate a criminal law process against him in Pakistan. He said he was actually not involved in that murder, and the real perpetrators were persons associated with another political party called Pakistan People’s Party (“PPP”).

4.Additionally, he said he was in fear of reprisal from the business partners he had in around March 2003 whilst he was staying in Hong Kong. It was said those business partners were imprisoned in Hong Kong for taking up illegal employment in Hong Kong while the Applicant himself was not charged. Those business partners were repatriated to Pakistan after their prison terms and they allegedly considered the Applicant an informant to the law enforcement.

5.The Applicant further raised his mental health issue (depression) diagnosed in Hong Kong as a basis – it was said if he returns to Pakistan he cannot receive appropriate treatment.

6.Having held oral hearings for the Applicant to make representations and answer questions, the Board found the Applicant not a credible witness. In this connection, the Board made references to certain country information about Pakistani politics in late 1990s and early 2000s to assess the plausibility of the Applicant’s claims. The Board also took into account the lack of evidential support about the FIR, the lack of action to obtain a copy of it and the Applicant’s cross-border movements in years 2002 and 2003 to come to the view that the Applicant was not at risk by reason of the alleged murder accusation.

7.In relation to the business partners’ suspicion that the Applicant was an informant, the Board found it unclear why they would want to hurt the Applicant should he return, and the relevant risk of harm was found to be low. While the diagnosis of depression was accepted, the Board found it not a critical health condition. There was no basis for any non-refoulement claim to be made out on that basis.

8.The Applicant has not set out any ground of judicial review in the Form 86 or his supporting affirmation against the Board’s Decision. I have reviewed the Board’s Decision vigorously. In my judgment, the decision was supported by sound factual findings and the Board had conducted an anxious scrutiny of the available evidence.

9.In particular, I consider the Board entitled to place emphasis on the Applicant’s delay in making non-refoulement claim (be it based on torture risk or other applicable ground), which was not made until years after his arrival in Hong Kong, in coming to the assessment that he was not under genuine risk. This factor should also be assessed in view of the multiple occasions he entered and exited Hong Kong in 2002 and 2003.

10.The Board was also entitled to rely on the lack of reasonable explanations over certain factual links in the Applicant’s claimed version of event, e.g. why he was considered a suspect to the said murder, in coming to its credibility assessment.

11.The assessment that the Hong Kong business partners presented a low level of risk cannot be faulted. There is no basis for this Court to interfere with the Board’s assessment that the Applicant’s depression did not involve any high risk of “imminent death” or “serious, rapid and irreversible decline in health amounting to intense suffering” after he is removed back to Pakistan and the current treatment he has in Hong Kong is withdrawn from him. Principles relevant to this area of non-refoulement protection can be seen from English authorities such as AM (Zimbabwe) v Secretary of State for the Home Department [2021] AC 633, which are persuasive to Hong Kong Courts.

12.In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). This application is hereby dismissed.

Dated the 17^th day of September 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