Ashraf Muhammad and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1365/2025

[2026] HKCFI 5832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1365 of 2025

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 Applicants in open court;

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

1.   Leave for the Applicants to apply for Judicial Review be granted;

2.   The Applicants shall file the Amended Form 86 within 28 days from the day of this Order;

3.   The Applicants shall issue the originating summons within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court; and

4.   Non-compliance with Order 80, rule 2 of the Rules of High Court in these proceedings as a mere irregularity without rendering the 3^rd to 5^th Applicants’ application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The applicants are a family. The 1^st applicant is the father (“the father”); the 2^nd applicant is the mother (“the mother”); the 3^rd applicant is the son born on 28 December 2008 in India; the 4^th applicant is another son born on 8 June 2011 in India, and the 5^th applicant is the daughter born on 1 September 2017 in India. The sons and the daughter are collectively called (“the children”). The parents act as the next friends of the children.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 28 March 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the father.

3.The applicants appeared before the Court on 20 May 2026 and on 7 October 2026 respectively, the first hearing being adjourned for the applicants to seek legal aid from the Director of Legal Aid Department.  On 7 October 2026, they returned and informed the Court that their application for legal aid had been rejected and their appeal against this decision was also dismissed by a Master of the High Court.

4.The applicants have filed an ex parte application for amendments to Form 86. The proposed amendments appear to be professionally prepared, with legal arguments and authorities. The Court will allow the amendments. The applicants shall file the Amended Form 86 within 28 days from the day of this Order.

The applicants  

5.The applicants are nationals of Pakistan.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the father’s enemies, whom the father believed to be members of the political party of the Pakistan Muslim League (Nawaz) (“PML-N”), the ruling party.

7.Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001365_2025_files/the_Board's_Decision.pdf

The Director’s Decision

8.The Director considered the applicants’ claims 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”).

9.By way of the Director’s Decision dated 26 November 2024 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board.  On 14 February 2024 and 24 March 2025 respectively, the Board conducted an oral hearing for their appeals.  The father had given evidence and answered the Board’s questions.

11.Having considered the evidence, the Board made the findings below.

(1)  As to all the applicants, the Board did not accept the father’s evidence that the state will not protect them because the police will side with the ruling party [80]; that the higher authorities will not help them [81]; that the unknown attackers will intensify the violence against them [83].

(2)  The problem the father and the mother faced a purely dispute with some PNL-N members for supporting PTI. There is no evidence to show that the dispute related to political reasons. There is no evidence to show that the father and/or the mother has expressed any political opinion to the public against the PML-N [85].

(3)  Reasonable state protection will be available to them if they return to Pakistan [138].

(4)  Internal relocation is viable for all of them [140] & [145].

(5)  As to the father and the mother, there was no evidence that the dispute related to political reason [85].

(6)  The parents’ claim failed under all the applicable risk as there was no evidence in support of their claim and there is no foreseeable, real, personal and present risk of being harmed if the father is refouled to Pakistan [180].

(7)  As to the children, there was no evidence that they will face different risks arising from the father’s case.

(8)  With regard to the 5^th applicant, the daughter, who may require mental service, there will be medical treatments for her need in Pakistan [168].

12.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 13 June 2025 for leave to apply for judicial review of the Board’s Decision.

14.The Amended Form 86 sets out 5 grounds to challenge the Board’s Decision. Ground 3 refers to mis-categorization of the applicants’ risk of harm. I shall discuss this issue below to state my reason that leave should be granted to the applicants to apply for leave for judicial review of the Board’s Decision.

DISCUSSION

15.The Board stated that the applicants will not be eligible for protection under Persecution because the father or the mother did not express any political opinions against the PML-N.

16.The Board accepted the evidence that the father led his 30-35 students to join the demonstrations for supporting PTI leader in Lahore and he was always at the front line. Police fired tear gas and hit the protesters with baton. The father had sustained injury on 3 or 4 occasions and he continued to join the activities despite the police officers’ action. [16] Since PTI was a political party in rivalry with the PML-N, the ruling party, it is unreasonable to treat the father as a non-political protester without the support of political ideology in support of PTI. It is at least arguable that public demonstration in support PTI is a form of expression of political opinions in favour of PTI.

17.This case is clearly heavily relying on the Persecution risk. The Board’s decision that the father is not eligible to claim protection under Prosecution risk arguably appears to be irrational. This is not to say that the father will succeed in the application for judicial review of the Board’s Decision. This issue has to be further considered at the stage of judicial review. However, I consider there is a reasonable and realistic prospect that he may succeed in his application.

DISPOSITION

18.I therefore grant leave to the applicants to apply for judicial review of the Board’s Decision. The applicants shall issue the originating summons in accordance with Rule 5(5) of the Rules of the High Court, i.e. within 14 days after the grant of leave from this Court.

19.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the children’s application a nullity.

Dated the 28^th 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