Usman Muhammad v. Torture Claims Appeal Board
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HCAL 1389/2024 [2026] HKCFI 5654 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1389 OF 2024 BETWEEN
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 21 August 2024, 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 19 August 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out his claims for non-refoulement protection in Hong Kong 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 17 April 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition Office” as the putative respondents, when only the Board should be so named. 4.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 putative respondent at all. 5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. The applicant’s case 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed, ill-treated and/or killed by: (1) his relative Sajawal in relation to a land dispute involving 8 kanals of land in the applicant’s home area; and (2) the local police in his home area concerning a false case that had allegedly been filed against him. Disposal on paper 8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 9.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). 10.The applicant did not advance any grounds for judicial review in Form 86, nor in his supporting affirmation dated 21 August 2024. The applicant merely mentioned in the said affirmation that he did not agree with the Board’s Decision. Discussion 11.First of all, the applicant’s danger in his country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 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, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 23 July 2024. The applicant was present and was thus given the chance to present his case to the Board in person. 15.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s evidence and the applicant’s claim were laid out in paragraphs 34 to 45 of the Board’s Decision, and it is not necessary to repeat the same here. 16.In gist, despite the behaviour detrimental to the applicant’s credibility, the Board accepted the basic facts spoken by the applicant, namely that he was subjectively afraid of Sajawal, he had been verbally threatened by Sajawal in the past, and that he was also subjectively afraid of the police. However, in considering the evidence, there was no or no reliable evidence to show (and the Board did not accept) that: (1) Sajawal would harm or kill the applicant if he were to return to Pakistan; (2) the applicant faced risk throughout Pakistan; (3) the applicant suffered injuries to the required severity; and (4) the state of Pakistan was unwilling to help the applicant for a RC[1] reason. 17.The Board had considered very extensive country of origin information (“COI”) to assess the availability of state protection to the applicant in paragraphs 58 to 67 of the Board’s Decision. The Board was of the view that it was clear that various avenues appeared to be accessible to the applicant and that state protection also appeared to be available to him. Significantly, the Board found that even if a false case against the applicant did exist and the police was to carry out their duty to investigate it, there was nothing to suggest that the police had any personal agenda against him such that they would harm him without any reason. 18.Moreover, the Board had also considered the viability of internal relocation for the applicant as a matter of caution. The Board had given its full reasons in paragraphs 93 to 95 of the Board’s Decision for its conclusion that there was no reason why the applicant could not relocate to other parts of Pakistan and stay there without undue hardship to avoid any perceived risk from Sajawal. 19.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 20.The finding of facts relating to a non-refoulement claim, 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. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 21.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. 22.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 23.For reasons aforesaid, the Leave Application is dismissed. Dated the 7th day of October 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 non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. |
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