MEHMOOD TARIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3311/2019

[2025] HKCFI 3336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3311 of 2019

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 present in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 February 2017 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 10 May 2017. His application was filed on 8 November 2019, which is late for more than 2 year and 5 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 14 July 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Pakistan. According to records, the applicant was arrested by police on 10 May 2009 for illegal remaining. In due course, he lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by a man named Aslam who was a member of Lashkar-e-Jhangvi (“LeJ”), a banned religious and militant organization.

6.  According to the applicant, many members of LeJ used to visit Aslam in the applicant’s village. On a night in September 2006, the applicant, along with other villagers, witnessed seven killers committing a murder. Some of these killers were associated with LeJ and Aslam. The applicant informed the police of the murder and the killers were apprehended. The applicant alleged that the killers were then killed by the police. When Aslam found out that the applicant was the police informant, his friend told the applicant that Aslam would take revenge against the death of his brothers. Out of fear, the applicant fled. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 April 2015 by the Director (the “Director’s Decision”).

The Director’s Decisions

7.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: the level of risk of being harmed or killed was assessed to be low, the low intensity and frequency of past ill-treatment in the past was indicative of a small future risk of harm, it took Aslam 4 years to come to know that the applicant was not in Pakistan, and the assertion of being killed by Aslam was too far-fetched [12-18] reasonable state protection was available [19-26]; and internal relocation alternatives were available and reasonable [27-35].

9.  By way of the Director’s Further Decision dated 12 April 2017, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that: the applicant did not provide further additional materials or facts [3]; and having carefully reviewed the applicant’s claim, in the absence of additional information, it was considered that the applicant failed to establish BOR 2 risk [5-6].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 17 March 2016, the Board conducted an oral hearing for his appeal. At the hearing, the applicant was legally represented and elected to give evidence and was cross-examined [6].

11.  Having considered the evidence, the Board doubted the credibility of the evidence and concluded that the evidence could not constitute substantial grounds under his non-refoulement claim [22-42]. In any event, the Board found that state protection was available [50]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003311_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 6 November 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he disagreed with the Board’s Decision, but was unable to give any detail of his disagreement.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

17.  There is no reason for this Court to interfere with the Board’s Decision.

18.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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