BAIG MIRZA FAISAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1964/2020

[2025] HKCFI 5532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1964 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 31 January 2019”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 29 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a “Decision From Immigration Dated 31th Jan 2019”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 31 January 2019 (“the Board’s Decision”) regarding the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 20 December 2016 (“the Director’s Decision”).  It is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001964_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”).  Thus, the Board refused the applicant’s petition and confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection on BOR 3 Risk[2], BOR 2 Risk[3] and Persecution Risk[4].

4.  The applicant lodged a torture claim previously on 14 June 2007.  The Director rejected his torture claim on 28 November 2013.  The applicant did not appeal against that decision.  Thus, the applicant’s Torture Risk had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk again in the Board’s Decision.

Amendments

5.  In Form 86, the applicant named “Director of Immigration” as both the proposed respondent and the putative interested party, when the putative respondent should be the Board.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.  Thus, on this court’s own motion, it is so amended.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by members of the Pakistan Muslim League (Q) (“PML(Q)”) due to his previous support for the Pakistan Muslim League (Nawaz) (“PML(N)”).  He also claimed that his life was in danger in Pakistan due to a land dispute with his distant relatives.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed Form 86 on 29 September 2020, which was more than 19 months after the Board’s Decision (made on 31 January 2019).  The applicant was hence late for more than 16 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. 

14.  A delay of more than 16 months is substantial and there is no justification for the delay.  Moreover, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

15.  However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the Board’s Decision.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 4 September 2025.

17.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

18.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

19.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 29 September 2020.  The applicant merely stated in the affirmation that he would like the court to review all the evidence and supporting documents and to allow him to continue to stay in Hong Kong as he would have direct threat if returned to his country.    

Discussion

21.  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 [2018] HKCA 524).

22.  Thus, the applicant cannot ask this court to review or re-assess his non-refoulement claim but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced.

23.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 17 December 2018 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

24.  As can be seen from the Board’s Decision, the Board gave very detailed analysis of the applicant’s case.  Having considered all the evidence, the Board had considerable doubts in relation to the truthfulness of the applicant’s claims.

25.  The Board noted the significant inconsistency between the applicant’s initial claim and the reason that he gave to the Board for seeking non-refoulement protection.  The applicant’s initial evidence to the Immigration Department concerned his fear of being pursued by members of PML(Q) due to his involvement with PML(N).  Yet, his evidence before the Board was that the dispute that brought about his feared harm was in relation to the land which his distant relatives had tried to obtain.  He did not mention anything about his political involvement until he was reminded by the Board of the inconsistency and after he had confirmed that the dispute was only in relation to the land.  The Board considered that the inconsistent nature of the evidence in this matter raised considerable concerns that the entirety of the applicant’s claims had been fabricated.

26.  The applicant’s inability to name the aim and objectives of PML(N), and his inconsistent evidence as to where he lived following the purported attacks on him further led the Board to consider that his claims were fabricated.  The Board did not accept that the applicant was beaten by persons from the PML(Q) and he was subsequently in hiding at any point.

27.  The Board did, however, find the applicant’s evidence regarding a long running dispute between his family and distant relatives in relation to land to be relatively persuasive.  Coupled with its finding from country of origin information (“COI”) that land disputes in Pakistan were prevalent, the Board accepted that there was such a dispute in relation to the land which the applicant lawfully owned.  The Board also accepted that the land dispute escalated to the point that the applicant and his father had a false First Information Report (“FIR”) filed against them.  Yet, the Board did not accept that that was the reason both the applicant and his father left Pakistan for Hong Kong in 2007.

28.  The applicant confirmed that his father who had come to Hong Kong with him had returned to Pakistan.  The Board did not accept that a FIR which was made in 2007 would have any adverse consequences for the applicant upon his return to Pakistan.  The Board concluded that the applicant came to Hong Kong and remained in Hong Kong for some 12 years for reasons unrelated to those he had put forward in his application for non-refoulement protection.

29.  The Board did not accept the applicant’s claims that he had been in hiding and had been beaten.  The Board considered that the applicant’s evidence indicated that the dispute had been in existence for several years and was currently being dealt with by lawyers, which would eventually be dealt with by the Pakistani land courts.  The Board was not satisfied that there was a real chance that the applicant would suffer harm in relation to this matter if he returned to Pakistan.  The Board did not accept the applicant’s claims regarding his political involvement and was not satisfied that the land dispute had a political dimension, ie the dispute was only in relation to land.  The Board was not satisfied that anyone would harm the applicant due to his political opinion or any of the other Convention reasons.

30.  Based on its findings as summarised above, the Board found that the applicant had not substantiated that he would be at risk of torture, ill-treatment, arbitrary deprivation of life or persecution if he returned to Pakistan.

31.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

32.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

33.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

34.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

36.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

37.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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