HAYAT SIKANDAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2358/2020

[2025] HKCFI 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2358 of 2020

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;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Hayat Sikandar (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 November 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 November 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Pakistani.  The Applicant was born on 25 December 1989 in District Swat, Pakistan.  He had received 10 years of education. 

3.  From 2008 to 2012, he was in the Pakistan Navy Volleyball team.  He had no role in the Navy other than a member of the volleyball team.  Between 2012 and 2016, he worked as a general labourer in Saudi Arabia.

4.  On a day in September 2008, about two dozen masked men arrived at the Applicant’s home in Pakistan and demanded him to join the Taliban or be killed.  He did not dare to refuse their request, so he pretended to agree.  On the next day, the Applicant went back to the Navy and did not return home for the next four years.  During this period, he learnt that the Taliban had visited his home from time to time.

5.  The Applicant also claimed that some villagers from his local village had joined the Taliban.  Their families wrongly accused the Applicant of providing information to the Pakistani army, which had led to killings of a number of members of the Taliban in his village.  They asked the Applicant’s family to hand over the Applicant to them.

6.  The Applicant said that he left the Navy to go to Saudi Arabia without informing anybody.  The Navy made a report to the police of the Applicant’s sudden departure without approval.  The police told the Applicant’s family that the Applicant was in breach of his contract with the Navy and a report would be made against him.

7.  The Applicant claimed that some villagers from his home village (“Villagers”) had followed him to different parts of Pakistan between 2016 and 2019 and on some occasions chased after him trying to kill him.  The Applicant eventually fled Pakistan for fear of his safety.

8.  The Applicant claimed that if he returned to Pakistan, he would be harmed or killed by the Taliban and/or the Villagers and the Pakistani police would arrest him for leaving the Navy without permission.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the "Ordinance") (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

11.  On 1 December 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). 

12.  Although the Applicant named both the Director and the Board as the proposed respondents in the Form 86 and stated in the Supporting Affirmation that he wanted to seek judicial review against a decision of the Director made on 27 October 2020 and the Board’s Decision, he only referred to the Board’s Decision in the Form 86 as the subject decision for his application and only exhibited to the Supporting Affirmation the Board’s Decision together with the covering letter.  The Director had not made any decision on the Applicant case on 27 October 2020, the DOI Decision was dated 27 November 2019. 

13.  From the above, it is clear that the Applicant intended to seek judicial review of the Board’s Decision in this application.  I confirmed the same with the Applicant at the court hearing of 25 February 2025 (“Court Hearing”).

14.  In a letter dated 7 February 2025, the Applicant sought to vacate the Court Hearing on the grounds that he had applied for legal aid and he wanted to adduce further supporting documents.  At the Court Hearing, the Applicant said that he wanted to produce documents relating to his service in the Navy and the police report made against him.  

15.  The Applicant left Pakistan in April 2019.  He had more than 6 months to prepare his evidence before he attended the screening interview with the Immigration Officer on 31 October 2019.  He had about 1 more year to arrange for his supporting documents before he attended the hearing before the Board on 27 October 2020.  He had about another 4 years and 4 months from the hearing before the Board to the Court Hearing to arrange for his supporting documents.  The Applicant has had more than reasonable time to arrange for his supporting documents.  Yet, he produced no further supporting documents at the Court Hearing. 

16.  In fact, the Board had already considered the Applicant’s service in the Pakistani Navy and the report made to the Pakistani police against him in the Board’s Decision. (See §§52, 58, 68, 69, 151-157, 206, 235, 263 and 264 of the Board’s Decision)  The further documents sought to be adduced by the Applicant would not advance his case any further.  I see no justification for adjourning the Court Hearing on this ground.    

17.  The court has not received any memorandum under section 15(4) of the Legal Aid Ordinance (Cap. 91) from the Director of Legal Aid (“DLA”) as at the time of the Court Hearing.  I decided to proceed with the Court Hearing. The court received the legal aid application memorandum from the DLA on 26 February 2025 after the Court hearing.  Thus, the court proceedings herein were stayed until 9 April 2025 pursuant to section 15(4) of the Legal Aid Ordinance and rule 7A of the Legal Aid Regulations (Cap. 91A).

Legal principles applicable to judicial review

18.  In a judicial review, the court does not step into the shoes of the decision makers.

19.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

20.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

21.  In both the Form 86 and the Supporting Affirmation, the Applicant did not put forward any ground for his intended judicial review.

22.  The Board was of the view that the Applicant had only made bare assertions and presented no objective proof to support them (§106 of the Board’s Decision).  The Board was of the further view that what the Applicant admitted at the hearing before the Board reflected poorly on his credibility and undermined the strength of his claims (§111 of the Board’s Decision). Nevertheless, the Board accepted and found that the Applicant was threatened by the Villagers and the Taliban in his local area (§234 of the Board’s Decision) but concluded that there was no evidence that the Applicant’s pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity for the Pakistani government (§237 of the Board’s Decision). 

23.  For reasons set out in §§122-150 and 158-168 of the Board’s Decision, the Board was of the view that the risk of the alleged threats, if any, faced by the Applicant from the Taliban or the Villagers should he return to Pakistan was very small.

24.  For reasons set out in §§151-157, the Board found that the Pakistani authorities had no adverse interest in the Applicant for his desertion from the Navy volleyball team in 2012.

25.  Lastly, after considering the relevant country of origin information (“COI”) materials, the Board found that state protection was available to the Applicant and internal relocation would be viable.

26.  At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.  He only reiterated that it was still dangerous for him to return to Pakistan. 

27.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

28.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

29.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

30.  The Applicant was never assaulted or harmed by the Taliban or the Villagers.  He was only verbally threatened by the Taliban.  He was able to leave and return to Pakistan on a number of occasions even after his leaving of the Navy without permission.  The Board was of the view that this was very strong evidence that the Pakistani authorities had no real interest in the Applicant.  The Board found that there were no substantial grounds to believe that the Applicant faced a genuine and substantial risk of being subjected to the torture risk or the BOR 3 risk if he returned to Pakistan.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk or that there was a real risk of the Applicant being persecuted for one of the reasons referred to in Article 33 of the Refugees Convention.  The Board also found that there was nothing to indicate that the Applicant faced the BOR 2 risk.  Reasonable state protection was available to the Applicant and internal relocation viable.

31.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

32.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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