AWAIS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

bjbj HCAL 1889/2020 [2026] HKCFI 938 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1889 OF 2020 BETWEEN Awais Muhammad Applicant Torture Claims Appeal Board Putative Respondent Director of Immigration Putative Interested Party Application for leave to apply for judicial review NOTIFICATION of the Judge s decision (Order 53, rule 3) Following: e amended to Torture Claims Appeal Board and the name of the putative interested party be amended to Director of Immigration . The applicant s application for leave to apply for judicial review be dismissed. Observations for the applicant: The Leave Application By way of Form 86 dated and filed on 22 September 2020, 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 16 September 2020 ( the Board s Decision ). The Board s Decision can be viewed in the following hyperlink:- HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001889_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001889_2020_files/the_Board's_Decision.pdf The Board found that the applicant s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism ( the USM ). Hence, the Board confirmed the decision of the Director of Immigration ( the Director ) dated 12 December 2019, which rejected the applicant s non-refoulement claim. Amendments In Form 86, the applicant named the adjudicator of the Board and the Director as the putative respondents and named the Board and the Director as the putative interested parties. However, he spelt their names wrong. In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party. Thus, this court makes an order on its own motion to amend the name of the putative respondent to Torture Claims Appeal Board and the name of the putative interested party to Director of Immigration . The applicant s case 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. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would at risk of harm or being killed by Annayat Ullah ( Annayat ) as Annayat blamed the Polio vaccination team ( the Team ) that the applicant acted as a helper falsely vaccinated his son and caused him death. Disposal on paper 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. Thus, the Leave Application is dealt with on paper. Grounds for judicial review 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). The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 22 September 2020. He merely stated in the affirmation that he could not go back to Pakistan as his life was in danger there. Discussion First of all, the applicant s alleged danger in Pakistan had already been fully assessed but rejected by the Board. If the applicant intends to challenge the Board s finding of facts, it is not permissible in a judicial review. 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 HYPERLINK "https://legalref.judiciary.hk/lrs/common/search/jud_search_ncn.jsp?selDatabase=ALL&ncnValue=2018+HKCA+524" \t "_blank" [2018] HKCA 524 ). Thus, despite the fact that the applicant did not advance any 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. In assessing the appeal by the applicant, the Board held an oral hearing on 27 April 2020. The applicant was present and was given the chance to present his case to the Board in person. As can be seen from the Board s Decision, the Board gave very full and detailed reasoning in finding that the applicant s claim for non-refoulement protection failed on all the applicable grounds under the USM. The Board s material findings included that: (1) the applicant had failed to produce any evidence relating to the Team and the two incidents he described; (2) the applicant had not suffered any physical injuries at both incidents; (3) Annayat had no intention to kill the applicant; (4) the applicant had been able to move freely in Pakistan and stayed in various places for an extended period of time for around a year uneventfully; (5) the applicant was able to leave Pakistan on the strength of his own passport without difficulty; (6) it was the volition of the applicant s family not to report the incidents to other police stations or government authorities when the local police station did not register the incidents; (7) Annayat was just a labourer and not affiliated with any political parties and he only kept looking for the applicant in his village; and (8) the applicant s family was staying at the same village uneventfully. Based on the above findings, the Board considered that the alleged harm by Annayat and his fellows, if any, was not as real and imminent as the applicant had asserted. Further, the Board found that Annayat was not a state actor. No public official or anyone acting in an official capacity was involved in the applicant s dispute with Annayat. The actual or perceived harm from Annayat did not reach a minimum level of severity. The harm, if any, from Annayat was not inflicted upon him for any of the Convention reasons. Moreover, after careful consideration of the country of origin information ( ), the Board considered that despite setbacks, the Pakistani government had taken positive steps to improve the performance of the police and made efforts in combating corruption and inefficiency in the country. There were avenues in Pakistan for seeking justice. The Board considered that reasonable state protection was available to the applicant. Furthermore, the Board found that internal relocation was a viable option for the applicant. The Board found that it would be highly unlikely for Annayat to locate the applicant in such a large country with such a huge population. The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 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. As held by the Court of Final Appeal in HYPERLINK "https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=59323&currpage=T" 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 For reasons aforesaid, the Leave Application is dismissed. Dated the 16th day of February 2026 ( Irene LEE ) for Registrar, High Court 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 Notes for the applicant: If leave has been granted, the applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent/Handed to the applicant/the applicant s solicitors on: 16 February 2026 Applicant s ref. no: Nil Sent/Handed to the putative respondent / the putative respondent s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties solicitors on: 16 February 2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent s ref. no.: USM 16618/19/12/84/P3262 Director of Immigration Putative interested party s ref. no.: QA T/C 962/19 (T1S106) (formerly RBCZ 10749/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |lYlD ppd\Q\d hMU/ hMU/ hMU/ hMU/ ~w~w~n~~g~ yiigWJ Form CALL-1 PAGE \* MERGEFORMAT {#:V yt8 yt8 phFx ph`^\ [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml z)P -zh 83;3;{ ]XS1IH 0H!A Ssd- ]A3U mH#[ A\;> K}*7c ^I77 >g^* y')f ZI$G ,{uk< WV j k3 zjv3,j X1? Xjg YIsR3 gm~x theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> # iX# iX # iX Windows User Normal.dotm Cheung HoKin Microsoft Office Word "System "System "System Times New Roman Times New Roman HCAL 1889 /202 [2026] HKCFI Times New Roman Times New Roman IN THE HIGH COURT OF HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST 1889 OF 202 BETWEEN Awais Muhammad Applicant Torture Claims Appeal Board Putative Respondent Director of Immigration Putative Interested Party Application for leave to apply for judicial review NOTIFICATION of the Judge decision (Order 53, rule 3) Following Wingdings 2 consideration of the documents only; Times New Roman consideration of the documents oral submissions by the a pplicant or counsel in open court; Order by Deputy High Court Judge Michael WONG "Arial On this court s own motion, the name of the putative respondent b e amended Torture Claims Appeal Board and the name of the putative interested party be amended to Director of Immigration The applicant s application for leave to apply for judicial review be dismissed. Observations for the applicant: Times New Roman The Leave Application "Arial By way of Form 86 dated and filed on 22 September 2020 , 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 16 September 2020 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/2020/HCAL001889_2020_files/the_Board's_D Times New Roman ecision.pdf "Arial Title _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8