SHEIKH AMR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 864/2022

[2026] HKCFI 3364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 864 of 2022

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 refuse.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 13 July 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

Background

2.  The Applicant is a Pakistani national, now aged 28. He surrendered to the Immigration Department on 3 October 2019 claiming to have sneaked into Hong Kong from Mainland China on 26 September 2019. He lodged a non-refoulement claim dated 3 and 25 October 2019.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims, if returned to Pakistan, he will be harmed or killed by a named member (“Haider”) of the Pakistan Tahreek-e-Insaf (the “PTI”) political party and be framed up in false cases because of political animosity.

4.  The Applicant’s claim as set out in his non-refoulement claim form (“NCF”) is as follows. He claims to be a dedicated supporter of the Pakistan Muslim League (N) (the “PML-N”) political party since 2016. He used to work under the leadership of Ward Councilor Shahid Butt and Major (Retired) Moin Nawa Warraich, member of the Provincial Assembly of Punjab. He helped to put up posters and attended meetings and protests. Before the election for the Chairman of Jalapur Jattan in 2018/2019, Supporters of the PTI threatened PML-N supporters to vote for a PTI candidate, otherwise bad things would happen to them.

5.  On 10 September 2018, when he went outside of his friend’s shop to answer a telephone call, Haider and four supporters or members of the PTI who were armed with pistols shouted at him and then assaulted him with iron rods for about five to ten minutes until he fainted. He was taken to a hospital for treatment and received 13 stitches on his head, but suffered no other injuries.

6.  That same day, the Applicant and his father filed a First Information Report (“FIR”) with the police as he was required to do as a condition precedent to his receiving continued medical treatment in the hospital (the “Applicant’s FIR”). The Applicant’s FIR indicated that his father was the informant, that the report was made at 1:00 pm on 11 September 2018, that the Applicant finished the procedures and left the police station at 8:00 am on 12 September 2018. The. The report was about an attack on the Applicant when he arrived near Ali Car Stand on his way home and that the attack arose out of “an argument over the collision of motorbikes and the matter was resolved at the scene”.

7.  On 27 October 2018, Haider made a criminal complaint against the Applicant and Kaku Shah. The Applicant was acquitted but the police re-opened the case. In around May 2019, he was again acquitted. The Applicant produced a FIR dated 27 October 2018 of which Haider was the informant (“Haider’s FIR”). Presumably, that was the false case alleged by the Applicant. The report noted that Haider made the report at 11:40 am on 27 October 2018 and left the police station on 28 October 2018 at 8:00 am. Haider claimed that at about 9 am on 25 October 2018, he and his three friends encountered the Applicant, Kaku Shah and two others who were armed with a 9 mm pistol and 30 calibre guns. Haider alleged that the Applicant and his men pointed their guns at him and told him to get on a motorcycle. Haider refused. The Applicant and Kaku Shah shot at him. Then, the Applicant and his men fled on their motorcycles, firing into the air.

8.  After nine months, the Applicant left Pakistan and flew to Beijing on 23 June 2019. He went to Guangzhou and Shenzhen. Then, he sneaked into Hong Kong on 26 September 2019. While in Hong Kong, Haider’s supporters (his “enemies”) went to his parents’ home threatening to kill him or file police cases against him.

9.  In the record of the screening interview (“ROI”), the Applicant confirmed that the attack took place on 10 September 2018. He attempted to explain why his father told the police that the animosity had been caused by a collision of motorbikes by saying that his assailants collided with him as a pretext for the attack and that the true reason behind was political animosity.

10.  The Applicant added that his father had gone to the National Accountability Bureau to complain about the police, but no help was offered. He also said he had hid in his aunt’s home in Karachi for two weeks after he was given bail for his criminal case and that Haider and his enemies had come to his aunt’s home looking for him. He identified Haider and his people from the PTI as his enemies instead of the PTI candidate.

The finding of the Board

11.  The Applicant appeared before the Board and testified. He said the attack on him was severe and there were many head injuries which impaired his memory. He claimed his memory is not very good and he could not remember many things. He said at the time of the screening interview his memory was still good. He said, “It was better than now”. He said what he could remember had been written down in his NCF and ROI. He could not remember when he realised his memory had been impaired by the assault and why he had not told his duty lawyer about his memory problem. He could not remember what happened in Beijing, Guangzhou and Shenzhen. He said everything is in the hearing bundle and he had nothing to add. A summary of what he told the Board at the hearing is summarised in paragraphs 68 to 152 of the Decision.

12.  The Board took the position that the Applicant had lost his memory before the hearing. It accepted the Applicant’s evidence about his personal and family background, his departure from Pakistan for Beijing, his detention in the Immigration Department and his discharge on his own recognisance; but rejected the entirety of his evidence forming the centrepiece of his case as of no credence because of multiple and substantial contradictions in his evidence and inherent improbability. For example, the Applicant’s account of the attack in his NCF is wholly different from that in the Applicant’s FIR. In the former, he said he was attacked after he went outside his friend’s store to answer a telephone call. In the latter, he said while he was on his way home, he was intercepted and attacked by his assailants near Ali Car Stand. In the Applicant’s FIR, his father described the traffic accident a few days prior as the cause of the attack. In answer to the immigration officer’s question at the screening interview, the Applicant asserted that the attackers staged the traffic accident a few days earlier to find an excuse to attack him a few days later. In the absence of explanation for the inconsistency, the Board did not accept his explanation. As for Haider’s FIR, the Board noted the striking and unusual absence of a case number. It commented on the poor quality of both the Applicant’s FIR and Haider’s FIR and the Applicant’s failure to produce originals. It also noted from country of origin information (“COI”) that the Applicant could obtain a better copy of FIR from the website of the Pakistani police force, Police Khid-mat Markaz (“PKM”). Having found no credence in his evidence, the Board found the Applicant had failed to show he had suffered harm or severe pain or threat of death or harm from Haider or his enemies from the PTI.

13.  After making the above finding, the Board went on to consider whether or not the Applicant has allegedly lost his memory before the hearing, and concluded that his assertion of memory loss is also of no credence.

14.  It found on the basis of authoritative and credible COI that Pakistan is willing and able to provide effective protection to its citizens. Though he had never been gainfully employed, the Applicant is a young and able-bodied person. The Board found that, given his youthfulness, he would have no difficulties relocating to Lahore, Karachi or Islamabad.

15.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

16.  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[6].

Grounds for judicial review

17.  At the hearing, after the legal principles in the preceding section were explained to him, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

19.  The Board analysed the evidence carefully, tested it against common sense, the COI and inherent probability. It gave the Applicant the benefit of the doubt and proceeded on the basis that his memory had been impaired before the oral hearing. It assessed his claim mainly on the basis of the evidence in the NCF and ROI. By reason of his claim of memory loss, the Board was prevented from resolving the many substantial contradictions and defects in his evidence. On the available evidence with its multiple and significant contradictions, it was open to the Board to find the Applicant not credible and gave no credence to his account. It found the Applicant had failed to show he had suffered harm or severe pain or threat of death or harm from Haider or his enemies from the PTI. It must necessarily follow that he had failed to prove ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance; cruel, inhuman, degrading treatment or punishment; persecution and that he would be at risk of being arbitrarily deprived of his life, if refouled. The Board gave detailed reasons for its finding. This finding is a mixed finding of law and fact. Insofar as it is a finding of the law, it is absolutely correct. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

20.  For the above reasons, the Applicant’s leave application is refused.

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

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