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

HCAL 1662/2021

[2026] HKCFI 5519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1662 of 2021

BETWEEN

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 oral submissions by the Applicant in open court;

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

1.  Form CALL-1 dated 29 April 2026 is set aside on the Court’s own motion, to be replaced by this Form CALL-1; and

2.  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 The Director’s Decision has been superseded by the Board’s Decision.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.He asked for a hearing. A hearing was fixed on 1 April 2026. He was absent. The Court issued a Form CALL-1 dated 29 April 2026 dismissing his application.

3.By letter dated 8 June 2026, the applicant wrote to the Court and said that his mailing address has changed. He did not update the Court’s his new address.

4.The Court decided to allow another chance for the applicant to appear before it. The Notice of Hearing was sent to his new address above. The hearing date was 10 August 2026. However, he was absent again. The Court dealt with the application on the papers and Form CALL-1 dated 29 April 2026 was issued.

5.It was then discovered that he was being detained. Another date was fixed for the applicant.

6.The applicant appeared before the Court on 16 September 2026. The Court received a Notice dated 15 September 2026 that the applicant had applied for legal aid. The applicant did not ask for an adjournment. The Court considered that there is no merit in this application and proceeded accordingly.

7.By virtue of Order 32, rule 6 of the Rules of the High Court, Form CALL-1 dated 29 April 2026 is set aside on the Court’s own motion, to be replaced by this Form CALL-1. See Re Cu Van Duc [2024] HKCA 641.

8.The applicant filed a summons dated 8 June 2026 for extension of time for his appeal to the Court of Appeal. This summons is now futile as this Form CALL-1 will supersede the one dated 29 April 2026. The applicant has given another address in the summons. He should update the court his address. The Court will send letter or notice to him at his last known address. If he fails to update the court with his address, he must take the responsibility himself.

The applicant

9.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.

10.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

11.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”).

12.By way of Notice of Decision dated 12 February 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

13.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.

14.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]

15.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

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

17.The applicant did not raise any specific ground to challenge the Board’s Decision. He has attached a copy of the Board’s Decision to his affirmation.

DISCUSSION

18.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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before the Court, the applicant submitted that he did not trust the Board because it did not give him time to obtain the documents such as the medical certificate from the hospital and the First Information Report from the police. However, the documents mentioned are not valid to challenge the Board’s finding of the facts above.

20.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.”

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

DISPOSITION

22.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 30^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