NAWAZ HABIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2813/2019

[2025] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2813 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the court’s own motion;

2.   The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 24 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 14 March 2018 (“Director’s Decision”) rejecting the applicant's non‑refoulement claim.

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 28 February 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

3.  In the Form 86, the applicant named the Board as the interested party when the Director should have been the proper interested party.  The Form 86 is therefore amended accordingly on the court’s own motion.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Pakistan.  He surrendered himself to the Immigration Department on 7 March 2016 for illegal remaining.  He had departed Pakistan by air on 3 March 2016 and arrived in Guangzhou the same day.  Upon inquiry, the applicant stated that he entered Hong Kong by boat from Shenzhen on 6 March 2016 without permission.  He was released on recognizance on 20 April 2016, and raised a non-refoulement claim on 9 August 2016.  The applicant’s claim was considered under all applicable grounds - the risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by his cousin, Imran, and/or Imran’s associates, due to a dispute over the distribution of his late grandfather’s land.

6.  According to the applicant, after the death of his grandfather, the applicant’s father and two paternal uncles took possession of the land jointly without formal transfer of the land title.  In October 2015, the applicant’s father and paternal uncles decided to distribute the land among the applicant, his brother and his 3 paternal cousins.  However, Imran demanded that all of the land be assigned to him alone.  Imran was a member of the Pakistan Muslim League (N) and is the Councillor of  Kotli Mehasian of the party.

7.  Later in October 2015, Imran brought 15 unknown men to the applicant’s home in Kotli Mehasian, Jhelum District.  At the time, the applicant was home alone. Imran and his associates used wooden batons to attack the applicant, and punched and kicked him repeatedly.  The attack lasted about 5 minutes until the neighbours came to intervene.  Imran and his associates fled.  The applicant was in great pain and lost consciousness.

8.  When the applicant regained consciousness, he was in a hospital in Tehsil Dina.  As a result of the attack, he sustained multiple injuries; in particular, his left forearm was seriously wounded.  He was hospitalized for about 15 days.  In the meantime, his father told him that Imran had apologized for the attack. The applicant therefore decided not to report the attack to the authorities.  He also believed that the authorities would not assist him because they were corrupt and would only help those who would bribe them.  To avoid Imran and associates, the applicant travelled to Karachi to stay with his friend, Assad, after his discharge from the hospital.

9.  In November 2015, Imran and 15 other men came to Assad’s home, and used wooden batons to assault Assad and the applicant.  Imran and his associates were masked.  The attack lasted about two minutes. As a result of this attack, Assad and the applicant sustained bruises all over their bodies.  For the same reason stated above, no report was made to the authorities.  After the attack, the applicant continued to stay at Assad’s home until he left Pakistan.

10.  Following the November 2015 incident, Assad and the applicant’s parents advised him that he should flee Pakistan to escape from Imran and his associates.  On 3 March 2016, the applicant left Pakistan by air to Guangzhou, mainland China, before coming to Hong Kong by boat. 

11.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low because during the October and November 2015 attacks, Imran and his associates had the opportunity to kill or seriously injure the applicant, but had not done so.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

12.  On 8 August 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant confirmed that his written evidence was true, and answered questions from the Board.

13.  The Board found that there was no real risk of harm, because the Board found the applicant’s evidence to be unreliable due to material inconsistencies between his written evidence and oral statements given at the Board hearing.  Such inconsistencies included conflicting evidence as to who held title to his grandfather’s land, the description of the applicant’s injuries, and how he was able to identify Imran as one of the assailants in the November 2015 attack.  The Board raised these concerns with the applicant. However, he was unable to satisfactorily explain the inconsistencies.  Therefore, the Board rejected his claim, and dismissed the applicant’s appeal.

Legal principles applicable to judicial review

14.  As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

15.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant exhibited a copy of the Board’s decision, and stated that it was unfair and at odds with the reality of his case.  The applicant did not provide any details.

16.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  Apart from informing this court that he married a Hong Kong citizen in November 2017, and had applied for an identity card, the applicant stated that he had nothing to add.

17.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

18.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant’s evidence was unreliable, thus there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with.

19.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

20.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

21.  The Form 86 is amended on the court’s own motion;         

22.  The Leave Application be dismissed.

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