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

HCAL 996/2025

[2025] HKCFI 4385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 996 of 2025

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 refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 24 April 2025 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 11 March 2025 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 December 2024 (the “Notice”), refusing his application for non-refoulement protection. 

Background

2.  The Applicant is a Pakistani national, now aged 45.  He illegally entered Hong Kong on 18 September 2007.  On the same day, he was arrested by the police for being suspected of remaining in Hong Kong illegally.  He raised a claim under Part VIIC of the Immigration Ordinance, Cap 115 (the “Torture Claims”) on 1 October 2007 and then a non-refoulement claim on 20 September 2024.  In due course, his claims were 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 was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

3.  His personal background, the factual background leading to the present application, the basis of his claim and 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 that if returned to Pakistan, he will be ill-treated or even killed by Yaqoob, Mushtaq and Ishaq (collectively, “his Enemies”) and Shia Muslims, because he refused to change his religious faith from Sunni Muslim to Shia Muslim.  He claims that he was born in a Sunni Muslim family.  On 25 July 2007, his Enemies and a group of 4 to 5 people vandalized and destroyed his home while he was away.  When he returned, the group abducted him to an unknown place where he was beat with bare hands and ill-treated for three or four days (the “Incident”).  During his detention, he was asked to join Shia Islam, but he refused.  On the last day of his detention, he was hit on the forehead and fainted.  Then he was tossed out of the house.  He was hospitalized for ten days.  He stayed in Gujrat until he left Pakistan for Mainland China in September 2007.  His father filed a report with the police about the Incident, but there was no follow up action taken by the police.

4.  The Applicant testified before the Board.  As he said he had never been ill‑treated until the Incident in 2017, the Board considered the Incident pivotal to his claim.  But it found significant discrepancies between his claim in the non-refoulement claim form (the “NCF”) and his testimony before the Board about the Incident.  First and most importantly, he told the Board that his Enemies were not involved in the Incident.  Second, he told the Board that his captors attacked him with steel pipes, but in his NCF he said they beat him with bare hands only.  Third, during the screening interview, he told the immigration officer that his captors threatened him with death, but he told the Board that they merely asked him to convert to Shia Islam.  In view of the inconsistencies and the Applicant’s evidence that his Enemies were not involved in the Incident, the Board found the Incident did not occur in the manner as claimed or exist. 

5.  The Board then went on to assess the Applicant’s claim on the basis that the Incident occurred in the way as claimed in the NCF.  From the fact that the Applicant was far out-numbered by his captors, that his captors had weapons and pistols, but he was never severely harmed under those circumstances, the Board drew the inference that his Enemies or the Shia Muslims had no intention to severely harm or kill him. 

6.  The Board also found there is no evidence to suggest that the Applicant was a prominent figure or leader of the Sunni sect.  As he never had problems practicing Sunni faith, even accepting that Sunni-Shia enmity has been a long-lasting issue, the Board doubted that the Applicant was targeted by his Enemies or Shia Muslims.  As the Applicant had left Pakistan for 17 years, the Board found it unlikely that the Shia Muslims would still remember he had been targeted, if indeed he had been targeted.

7.  The Board found that the Enemies and Shia Muslims acted in their personal and private capacities in all their interactions with the Applicant, but they were not state actors.  Hence the ill-treatment inflicted in the past and to be inflicted on the Applicant in future lacks involvement, active or otherwise, by a public official or other person acting in an official capacity and the feared ill-treatment did not arise out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  Therefore, the Board found the feared ill-treatment does not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and the Applicant is not protected under the Torture Risk ground or Persecution Risk ground.  For the same reason, the Board did not consider the Applicant would be subjected to the kind of ill-treatment contemplated under BOR 3 Risk ground.  The Board also found that BOR 2 Risk ground is not engaged.

8.  Though the police took no follow up action on the Incident, the Board considered their inability to do so was due to insufficient information and evidence rather than a deliberate refusal or unwillingness on their part to afford protection to the Applicant.  It also found there is no indication that the government as a whole was aware of the Applicant’s problems with Shia Muslims and refused to assist him.  It therefore found adequate state protection would be available to the Applicant on his return to Pakistan.  It could find no substantial grounds for believing that there will be a foreseeable and real risk of harm on the Applicant from Shia Muslims, his Enemies, or from the Pakistani authorities upon his return to his home village in Pakistan. 

9.  On the basis of country of origin information (“COI”), the Board accepted that there are sectarian violence and disputes between the Shia Muslims and the Sunni Muslims in Pakistan.  However, the same COI also suggested that practical steps are taken by Pakistani authorities to cope with the sectarian conflicts.  On balance, the Board considered reasonable state protection would be available to the Applicant on his return to Pakistan.  In addition, it would not be unduly harsh or unreasonable for the Applicant as a body-abled person to relocate to other parts of Pakistan to negate the perceived risk of harm from his Enemies and the Shia Muslims in his home area.  

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

Grounds for judicial review

11.  After the principles relating to judicial review had been explained to him and in answer to the Court’s question on these matters, the Applicant confirmed that he had no complaint about error of law, procedural unfairness and irrationality in the Decision.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

12.  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.  The Board studied the COI extensively.  It analysed the evidence carefully, tested it against common sense, inherent probability and the COI.  It found significant inconsistencies in the Applicant’s claim in the NCF and his testimony before the Board which led the Board to the conclusion that the Incident on which the Applicant’s claim was based was not proved or did not exist.  It gave detailed reasons for its finding.  This is a finding of fact which the Court may not interfere save for errors of law, procedural unfairness or irrationality in the Decision.  That finding would have been sufficient to dispose of his appeal. 

13.  However, the Board went further and assessed his claim also on the basis that the Incident did occur in the way as the Applicant asserted whether with or without his Enemies involvement in the Incident.  It found even on that bases the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact, which showed the Applicant had totally failed to establish the factual basis in support of his entitlement to protection under any of the applicable grounds under the USM.  This finding is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save for error of law or procedural unfairness or irrationality in the Decisions.  The Court could detect no error of law or procedural unfairness in the Decisions.  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 Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

14.  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

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000996_2025_files/the_Board's_Decision.pdf