GILLANI SYED RIZWAN AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 2112/2020

[2026] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2112 OF 2020

Application for leave to apply for judicial review

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

Following:

1.   The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

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 22 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 27 January 2017 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002112_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to establish a case for non-refoulement protection on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 20 March 2015, which rejected the applicant’s non-refoulement claim.

3.  Subsequent to the Board’s Decision, the Director assessed the applicant’s non-refoulement claim based on BOR 2 Risk[4] and rejected it on 11 April 2017.  There was no appeal to the Board on this decision.

Late application

4.  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.

5.  However, the applicant filed his Form 86 on 22 October 2020, which was more than 3 years and 8 months after the Board’s Decision (made on 27 January 2017). The applicant was hence late for more than 3 years and 5 months in making the Leave Application.

6.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

7.  In the applicant’s affirmation dated 22 October 2020, he stated that it was an affirmation for extension of time to apply for judicial review as he did not agree with the adjudicator’s decision.  However, no explanation was given as to why the application was filed late at all.  The fact that he did not agree with the Board’s Decision does not mean that he was entitled to an extension of time to file the Leave Application.

8.  A delay of more than 3 years and 5 months is very substantial, and there was no explanation offered for the delay.  More importantly, there is no merits in the Leave Application as discussed below.

9.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.  The applicant’s application for an extension of time to file the Leave Application is refused.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

10.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

11.  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.

12.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by his creditor Khurram as he was unable to repay a loan of 2.7 million Pakistani Rupees.  The applicant claimed that Khurram had connections with politicians as well as with gangsters and various police officers.

Disposal on paper

13.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

14.  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).

15.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 22 October 2020.  The applicant only stated in the affirmation that he did not agree with the Board’s Decision.

Discussion

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 [2018] HKCA 524).

17.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

18.  In assessing the appeal by the applicant, the Board held an oral hearing on 8 December 2015.  The applicant was present and was given the chance to present his case to the Board in person.  

19.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds (except BOR 2 Risk) under the USM.

20.  The Board found that the applicant’s fear of returning to Pakistan arose solely from his inability to repay a loan, which was a private matter.  There was no evidence of state acquiescence in his dispute with the creditor.  The applicant’s assertion that his creditor had filed a First Information Report against him could not assist his non-refoulement claim either.  The Board found that the applicant had fled Pakistan in an effort to avoid the due process of the law.  Fleeing a home country in order to avoid legal sanctions did not entitle a claimant to non-refoulement protection.  There was also no evidence to show that the legal sanction was so disproportionate that it amounted to torture.

21.  The applicant had in fact never been assaulted but only spoke of threats from the creditor.  The Board found that the alleged suffering of the applicant did not reach the threshold of torture as defined in section 37U of the Immigration Ordinance or the criteria of CIDTP[5]. The applicant’s alleged future risk of harm from his creditor would not be launched under any Convention Category.

22.  The Board also found from extensive, fully-referenced country of origin information (“COI”) that reasonable state protection was available in Pakistan to protect him from harm by his creditor.

23.  The Board noted that internal relocation did not help the applicant in relation to him being a person wanted by the police.  However, as a fugitive from the law, the applicant’s fear of arrest was not a basis for non-refoulement.  The Board noted that the principles against fleeing from legal sanctions was found in refugee law, which said that “a refugee is a victim or a potential victim of injustice, not a fugitive from justice (see UNHCR Handbook (1979) Chapter II at §56).  The Board found that the applicant was precisely a fugitive from justice.

24.  Despite its findings above, the Board did explicitly find that the applicant could relocate internally within Pakistan to avoid his creditor.  There was no evidence that the creditor was interested in locating the applicant all over Pakistan in order to kill him, nor any evidence that the creditor was resourceful and willing to expend the resources to locate him to recover a debt which was unlikely to be repaid.

25.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds including Torture Risk, BOR 3 Risk and Persecution Risk under the USM.

26.  The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.  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. 

28.  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

29.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused and 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