BILAL MUSHTAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1629/2020

[2025] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1629 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Bilal Mushtaq (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 August 2017 (“Board’s Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 15 October 2013, 25 September 2015 and 28 March 2017 (together “DOI Decisions”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Pakistani. He was born on 1 November 1986 in Azad Kashmir, Pakistan. He received 12 years of education and claimed to have worked as a driver in the Pakistani army.

The Claim

3.  The Applicant claimed to have joined the Jammu Kashmir Liberation Front (“JKLF”) and their affiliated organization Lashkar-e-Taiba (“LT”) in around 2005. The main objective of JKLF was to encourage the Kashmir people to uphold the belief that Kashmir should be independent of both India and Pakistan. The Applicant claimed that JKLF was an illegal organization in Pakistan. He joined the Pakistani army in June 2006 at the behest of the senior commanders of JKLF to collect information on Pakistani army’s operations against JKLF.

4.  The Applicant claimed that he kept his JKLF and LT membership cards inside a box within the army camp but that was discovered by his unit caption in the Pakistani army during a random check in 2007. The Applicant admitted to the charges of being a member of JKLF and LT as well as a spy for JKLF. He was sentenced by the army court to 28 days imprisonment in September 2007.

5.  The Applicant claimed that during his imprisonment, he was locked in a small confined space and had to walk for 2 hours everyday carrying heavy object on his back. Sometimes the prison guard would require him to do push-ups with heavy object on his back and would hit him with a solid stick if he failed to do so. On the last day of his detention when he was too exhausted to do the push-ups, a guard stepped on his back forcefully to push him down and fractured his wrist. He was taken to the army hospital to receive medical treatment. It took him about 28 days to recover.

6.  The Applicant returned to the army in October 2007 after his release from detention. Because he knew that he was being watched, he decided to run away from the army. He returned to his family’s home briefly before fleeing to Karachi and later Gadani where he stayed for around 2 months. Nothing eventful happened when he was staying in Karachi and Gadani. One day, the Applicant’s friend from the army told him that the Federal Investigation Units and the Military Intelligence were looking for him. He therefore decided to flee the country.

7.  The Applicant boarded a flight from Lahore, Pakistan to Mainland China. He did not encounter any problems with the Pakistani authorities when departing Pakistan. He then sneaked into Hong Kong from Mainland China.

8.  The Applicant’s mother told him in October 2012 that the army came to his house from time to time to look for him.

9.  The Applicant claimed that he would be harmed or killed by the Pakistani army if he were returned to Pakistan because he would be accused of being a member of JKLF and LT, a spy for JKLF and a deserter of the Pakistani army.

Procedural history

10.  The Applicant arrived in Hong Kong in January 2008 illegally and was arrested on 30 January 2008. He was arrested again on 31 October 2012 for taking up illegal employment.

11.  On 3 August 2009, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The Director rejected the CAT Claim on 15 October 2013 (“2013 DOI Decision”).

12.  The Applicant appealed against the 2013 DOI Decision to the Board (“2013 Appeal”).

13.  On 27 February 2014, the Applicant filed a non-refoulement claim (“NRC”). The Director considered the NRC on the following grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 3 risk”); and

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

14.  By the decision dated 25 September 2015 (“2015 DOI Decision”), the Director rejected the NRC. The Applicant also appealed against the 2015 DOI Decision to the Board (“2015 Appeal”).

15.  By a letter dated 30 September 2016, the Director invited the Applicant to submit additional facts, if any, which the Applicant considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under BOR, including right to life under Article 2 of section 8 of BOR (“BOR 2” and “BOR 2 Claim”).

16.  By written submission dated 12 October 2016, the Applicant provided additional materials or facts for the BOR 2 Claim. By the decision dated 28 March 2017 (“2017 DOI Decision”), the Director rejected the BOR 2 Claim.

17.  The CAT Claim, the NRC and the BOR 2 Claim together formed the Claim.

18.  The hearings for the 2013 Appeal and 2015 Appeal took place on 2 and 6 December 2016. Before the Board determined the 2013 and 2015 Appeals, the Director issued the 2017 DOI Decision. The legal representatives of the Applicant made further written submissions to the Board on the 2017 DOI Decision (“Further Submissions”). The Board considered the Further Submissions and dealt with the Applicant’s appeals against all the DOI Decisions in the Board’s Decision.

19.  By the Board’s Decision, the Board affirmed the DOI Decisions. The Board rejected and dismissed all appeals of the Applicant.

20.  On 10 August 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”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

21.  On 15 August 2024, the Applicant filed another affirmation applying to withdraw his case (“Withdrawal Application”).

22.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

23.  The Board’s Decision was issued on 16 August 2017. As such, the Applicant should have filed the Form 86 latest on 16 November 2017. The Form 86 was filed on 10 August 2020 and it was late.

24.  No application for extension of time to file the Form 86 was made by the Applicant but on 15 August 2024, the Applicant filed the Withdrawal Application applying to withdraw his intended judicial review application.

25.  The Applicant was late for more than 2 years and 8 months in filing the Form 86. This is a very substantial delay. The Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for his late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

26.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application for leave for judicial review before deciding on how to dispose of the matters.

27.  Subsequently, the Director informed the court that the Applicant had been removed in September 2024. As such, I proceeded to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by way of paper disposal.

The DOI Decisions

28.  In the 2013 DOI Decision, the Director found that the alleged treatment suffered by the Applicant during his detention did not amount to “torture” as defined in section 37U(1) of the Immigration Ordinance (Cap. 115) (“Ordinance”).

29.  The Applicant admitted that he acted as spy for JKLF (an illegal organization in Pakistan) to collect information from the army and had deserted the army which was an offence in Pakistan. The Director found that the army or intelligence agencies going to the Applicant’s home to locate him was for investigation of the offences committed by the Applicant. They were not acting beyond their duties or outside the governance of the law in the investigation process. The Director noted that under section 37U(1) of the Ordinance, pain or suffering arising only from, inherent in or incidental to lawful sanction did not amount to “torture”. The Director was of the view that any potential apprehension, trial by court and any subsequent proportionate punishment that might arise from any lawful sanctions due to the Applicant’s deserting the army or being a spy of JKLF or member of JKLF and LT were not “torture” as defined by section 37U(1) of the Ordinance. (§(III)(B)(ii) of the 2013 DOI Decision)

30.  The Applicant had already been convicted and punished for being a spy and member of JKLF and LT by the army court. There was no evidence to support that the Pakistani authorities would further accuse the Applicant of the same offences. The Director was of the view that the fact that the Applicant was able to depart Pakistan in January 2008 without encountering any difficulties indicated that the Pakistani authorities had no adverse interest in him.

31.  After considering the relevant country of origin information (“COI”), the Director was of the view that there was no evidence showing that the Applicant would be subjected to a real or foreseeable risk of torture by the Pakistani authorities and denied of a fair trial and justice, if he were arrested for offences committed by him upon his return to Pakistan.

32.  The Director also did not accept the credibility of the Applicant. The Director found that the Applicant had provided different accounts on matters after he was discharged from detention and his evidence of returning to army service after release from detention was incredible. The Director found it unreasonable for the Pakistani army to take the risk of retaining a spy and terrorist in their unit. (§(III)(C) of the 2013 DOI Decision)

33.  For reasons stated in the 2013 DOI Decision, the Director rejected the CAT Claim.

34.  In the 2015 DOI Decision, the Director again found that the Applicant was not credible for reasons stated in §23 of the 2015 DOI Decision. The Director assessed that the claimed risk of feared ill-treatment from the Pakistani army was not real and not foreseeable and that the Applicant’s fear was not well-founded.

35.  The Director did not accept that the Applicant faced a genuine and substantial risk of being subjected to the BOR 3 risk upon his return to Pakistan or that his fear for the persecution risk was well-founded. His analysis was similar to that in the 2013 DOI Decision.

36.  On the issue of state protection, after considering the relevant COI, the Director found that reasonable state protection would be available to the Applicant, if necessary. The Director found that if the Applicant was arrested or charged for his deserting the army upon his return, there was no indication to suggest that he would be ill-treated by the Pakistani government and a fair trial would not be given to him.

37.  For reasons stated in the 2015 DOI Decision, the Director rejected the NRC.

38.  In the 2017 DOI Decision, the Director considered the additional materials provided by the Applicant (identified at §3 of the 2017 DOI Decision) on conflict between the Indian and Pakistani army in the Kashmir region at the border and found that they were not related to the Applicant personally. Nothing relating to JKLF was mentioned in these additional materials and there was no indication that the conflict was in any way related to JKLF. According to those materials, the threats from India was met by Pakistani army’s intervention. The Director maintained the view that state protection and internal relocation alternatives remained available and reasonable.

39.  The Director considered that the Applicant had failed to establish a personal and real risk of the Applicant’s absolute and non-derogable rights under BOR being violated (including right to life under BOR 2) upon his return to Pakistan.

40.  For reasons stated in the 2017 DOI Decision, the Director rejected the BOR 2 Claim.

The Board’s Decision

41.  The Board found that the Applicant’s evidence was incredible for the reasons stated at §§28-33 of the Board’s Decision. Notably, the Board found that the so-called JKLF membership card had so many errors in its form and content (not least because it was written in English, as opposed to Urdu) that the card could not be genuine (§29 of the Board’s Decision).

42.  The Board therefore concluded that the Applicant was not a credible witness. The Board did not attach any weight to the Applicant’s assertions as to events he claimed to have personally experienced. There was thus no factual basis for the Applicant to claim non-refoulement protection.

43.  The Applicant had never fought for JKLF or against the Indians. The Board was of the view that the materials adduced by the Applicant on the conflict between the Indian and Pakistani army in the border area of Kashmir was irrelevant to the Applicant’s claims.

44.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decisions and dismissed all the appeals of the Applicant.

Legal principles applicable to judicial review

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

46.  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 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.”

47.  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

48.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I am not satisfied with decision of Immigration and I have objection with decision. Because I have still problem in my country and I can’t go back. Please help me to stay here more.” He did not produce any supporting documents to the Supporting Affirmation.

49.  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 Decisions, or in what way was the Board’s Decision 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.

50.  Having rigorously examined the Board’s Decision and the DOI Decisions with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

51.  The Board found that the Applicant’s evidence was incredible and rejected his entire case. The Board found that the Applicant failed to establish that there was a real chance he would be subjected to the persecution risk nor there were substantial grounds for believing the Applicant would face torture or the BOR 3 risk, if he was refouled to Pakistan. The Board also found that the Applicant had failed to establish a personal and real risk of his right to life under BOR 2 being violated upon his return to Pakistan.

52.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts 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.

The Withdrawal Application

53.  The Applicant subsequently filed the Withdrawal Application on 15 August 2024 stating that he wanted to withdraw his case.

54.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

55.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

56.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

57.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decisions 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 a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

58.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of his address for service, the court will send a copy of this judgment and the sealed order to the Applicant at his address stated in the Withdrawal Application with copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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