SOHAIL AFZAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3589/2019

[2025] HKCFI 2899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3589 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 oral submissions by the Applicant in open court;

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of (i) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 14 November 2019 (“the Board’s Decision”); and (ii) the decision of the Director of Immigration (“the Director”) dated 21 February 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) other than the Torture risk.

2.  In Form 86, the Applicant has erroneously named both the Board and the Director as one of the proposed respondents and the proposed interested parties respectively, which I have amended on my own motion.

Background

3.  The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by members of the Muslim Students Federation (MSF) closely associated with the Muslim League-Nawaz (PML(N)) in Pakistan, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  First of all, the Director’s Decision, which was confirmed in the Board’s Decision, is not open to challenge. It is well-established that the decision of an immigration officer is not a decision that is within the administrative structure susceptible to judicial review once an appeal to the Board is pursued by a claimant (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.).

5.  With respect to the Board’s Decision, I am not convinced that the Applicant’s intended challenge, based on any of the matters below, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)  “…[T]he determination made by the Adjudicator is nothing but biased observations that are designed to reject my claim. However, such basis of rejection lacks completeness and evidence.”

(2)  “The appeal decision to reject my appeal was procedurally unfair. The producer [sic] by which the adjudicator arrived at the appeal decision was unfair…”

(3)  “The Torture Claim Appeal Board was under a duty to exercise high standards of fairness and give adequate reasons for his decision. Given all the documentary evidence provided by me, the answers in my claim forms, the supplementary statements in support and the explanation given by the appellant to the Board, it was Wholly unfair, unreasonable, illogical for the Board, at 155 of the decision, to reject all of his claims in relation to his experiences in Pakistan, [sic] According to 155, the Board is only prepared to accept that the appellant may have faced quite serious harm form [sic] the police and Saif. In other words all other aspects of the Appellant’s claim were completely given no credence whatsoever, which is frankly astonishing, given all the documentary evidence provided by the Appellant.”

(4)  “In case of Shafqat Ali v Betty Kwan And others (unreported HCAL74/2012, 7 December 2013) the judge clearly summarized the principle that an adjudicator should exercise when dealing with the evidence.”

(5)  “It is submitted that it is irrational, unreasonable and unfair to reject the credibility of the Appellant’s whole case, as it cannot be reasonably submitted that the Board could have “no real doubt” that all of the Appellant's claims in Pakistan did not in fact occur.”

(6)  “I also strongly disagree that my failure to raise a torture claim earlier should be damaging my credibility. The requirement for raising a claim was “as soon as practicable”. It was impracticable for me to obtain information with regards to how to raise a torture claim. Furthermore, later on when I raised a claim at the United Nations and got rejected, I genuinely believed (as a non-represented litigant), that this was the end of the process. If the authorities were unwilling to offer me protection, it would be unrealistic for me to return to my home country which I knew would be dangerous for me to return. If the authorities have failed to recognize that I have a right to life, it does not mean that I should not be in charge of my own right to life.”

(7)  “The Adjudicator further went on to comment that “such conduct was inconsistent with that of a person in genuine fear of risk of harm”. The Adjudicator has not explained what a proper conduct of someone that would be is in genuine fear of risk of harm. From my own point of view, I was living in fear and tried to cut ties with the outside world. Due to the traumatic experience I was unable to move around like a normal person. Furthermore, given the lack of resources, I did not know where to do or who to talk to. The Adjudicator has never taken such vulnerability of a non-refoulement claimant into account and merely attached me on the timing of raising the claim. As a matter of fact, I was not aware of raising a claim (as I genuinely thought the UN claim is the same as a torture claim) until I was arrested later on.”

(8)  “I further submit that the Adjudicator has erred in his decision making by not considering any COIs that are with regards to my grounds. Given that the adjudicator has accepted that I am associated with the ATI, which is perceived to be against MSF, the Adjudicator should to the very least [sic] enmity in political students’ groups in Pakistan. However, the Adjudicator has merely disposed of my case primarily on credibility grounds which are not supported by any COIs and are merely his own observations that are not properly justified.”

6.  At the oral hearing, the Applicant has drawn my attention to several additional paragraphs in the Board’s Decision, which he claims are crucial for understanding the matter.

7.  First of all, I have reminded myself to rigorously examine and anxiously scrutinize the Board’s Decision, applying an enhanced standard as required by law due to the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

8.  After doing so, I am not satisfied that there is sufficient evidence or basis to demonstrate that the Board had failed to accurately set out the burden and standard of proof, the law and key legal principles; to assess the evidence, COI materials, risk of harm, state protection and viability of internal relocation; or to uphold a very high standard of fairness.

9.  The Applicant’s complaints that the determination made by the Board was based on nothing but “biased observations”, designed to reject his claim, was lacking “completeness and evidence”, and that the appeal procedure was unfair, are simply unfounded and unsubstantiated.

10.  At the hearing before the Board, the Applicant was represented by Mr. Mark Daly, Duty Lawyer Service. An interpreter, who spoke the Urdu and English languages, was arranged to assist the Applicant in providing evidence. The interpreter was advised of the Applicant’s hearing problems and agreed to speak as loudly and clearly as possible. The Applicant was asked to inform the Board of any problems related to interpreting or his ability to hear or understand the interpreter. No issues regarding the interpreter were raised during the hearing. The Applicant could give evidence and respond to questions regarding his claim with proper and appropriate translation, clearly demonstrating that there was effective communication throughout the process.

11.  As can be seen from the Board’s Decision, the Board had carefully considered the materials setting out the relevant aspects of the Applicant’s claim, including the written representation, the Questionnaire, the Answers to Questions provided on different dates, the SCF, the records of interview, the Director’s Decision, the Notice of Appeal/Petition, the parties’ skeleton submissions, the Hearing Bundle containing additional information, including the relevant COI Information, the Applicant’s oral evidence given on 10 September 2019, and the parties’ closing written submissions. These materials would likely have detailed the Applicant’s alleged vulnerabilities, including his traumatic experiences of living in fear and having to sever ties with the outside world. Therefore, it is factually inaccurate for the Applicant to claim that the Board had never considered these matters.

12.  In summary, the Applicant’s case was that he faced a real risk of torture and death at the hands of Saif and Saif’s friends, Shahid Aslam, Amjad and Anjam Saeed, Nasir and Rafiq, with the consent or acquiescence of the police and individuals associated with the PML(N) and the MSF, including Saif and his associates. According to the Applicant, he witnessed one of his friends, Sarfraz, shoot Shahid Aslam in May 1996. He was interrogated at the police station, mistreated, but released without charge. In December 1996, he was captured by Saif and his friends. When he encountered Saif in April 1997, he was slapped in the face. Saif and his associates were unable to locate him or his friends. In 2009, 13 years after the initial incident in 1996, they shot and killed his brother. In 2018, 22 years after the original incident, they assaulted another brother. The Applicant claimed that he faced outstanding charges in relation to the shooting of Shahid Aslam and would be imprisoned and mistreated upon his return to Pakistan. He also claimed to continue to fear Saif, the Saeed brothers and their associates, who blamed him for the shooting.

13.  In order to properly understand the Applicant’s claim, the Board had asked him a series of questions:

(1)  The Board firstly asked about the Applicant’s involvement with the ATI. The Applicant was informed that the information the Board reviewed indicated that the ATI was not a political party but a religious organization. The Applicant was also advised that the information did not suggest that the ATI held seats in the national or provincial parliament.

(2)  The Applicant was asked about the incident involving the shooting of Shahid Aslam. The Board commented that the incident was witnessed by several people. The Board asked the Applicant why he was the one who was targeted and why they would be so intent on blaming him, rather than the others who were present.

(3)  The Applicant was first asked whether Saif or his associates had attacked or harmed the other two men with Sarfraz or their families. The Applicant answered they had not. The Board then further asked why they would be so intent on harming only him and his family, and not the family members of the other men.

(4)  Regarding the Applicant’s claim in relation to the police, the Board asked why the police would have any interest in him.

(5)  The Board further asked the Applicant why he would be a suspect of Shahid’s murder, as even basic inquiries conducted by the police would reveal he was not the one responsible for the shooting. The Board commented that he was charged. The Board advised the Applicant of information from the UK Home Office and the Australian government that unless persons had charges against them, they would not face any difficulties returning to Pakistan after an extended period.

(6)  The Board had discussed the documents the Applicant had provided and advised him that it had concerns that they may have been contrived.

(7)  The Board asked the Applicant how Saif and his friends would have any influence upon their return to Pakistan, given that the PML(N) was no longer in power.

(8)  The Board asked the Applicant why he had waited for 10 years before applying for protection in Hong Kong and did not pursue his application to UNHCR. He answered that he had no knowledge of how to lodge such an application, and when he learned his case was closed, a friend advised him that if he applied again he would be deported.

At this juncture, it is necessary to point out that, contrary to what the Applicant suggests, the Board did not merely attach weight to the timing of the Applicant raising the claim. In fact, it was merely one of the matters discussed and explored by the Board in the hearing.

(9)  When asked if there was anything further he wished to add, the Applicant said he would not have wasted 22 years of his life in Hong Kong if he could have returned to Pakistan.

14.  After considering all the evidence, the Board concluded that the Applicant was neither truthful nor a credible witness and had fabricated many aspects of his claim for non-refoulement protection in Hong Kong. It is therefore evident that the Applicant’s failure to raise a torture claim earlier was just one of the factors considered by the Board in concluding that the Applicant was not credible. As stated in the Board’s Decision, the Board had significant doubts regarding several aspects of the Applicant’s claim and did not accept that he genuinely feared Saif and his associates, or the Saeed brothers, nor that he was facing any outstanding criminal charges relating to the shooting which occurred in May 1996.

15.  The Board found it unnecessary to explore other possible reasons for the Applicant’s prolonged stay in Hong Kong, as it was not satisfied that he genuinely feared harm in Pakistan, nor that there was a real risk, a real chance or substantial or strong grounds for believing that he would suffer harm which met the relevant non-refoulement grounds.

16.  The Board’s assessment of the evidence regarding the Applicant’s political claims, the shooting incident and the outstanding charges, the subsequent attacks by Saif and associates, the Applicant’s brother’s death, the attack against the Applicant’s other brother in 2018, and the reasons for these conclusions can be found in the Board’s Decision (see §§114-154 of the Board’s Decision).

17.  Furthermore, the Board was not satisfied that the Applicant’s lengthy absence from Pakistan or application for asylum, his return subject to deportation proceedings, or any other similar factors, were such that he would face torture/CIDTP, a risk to his life or persecution from the Pakistani authorities. The Board also considered the Applicant’s claim regarding generalized violence and the volatile security situation. However, the Board was not satisfied, having considered all the evidence, that there were substantial or strong grounds or a real chance or a real risk that the Applicant would suffer harm amounting to torture/CIDTP, a risk to his life or persecution from the police or any other agencies or Saif, the Saeed brothers, Shahid or any of their associates or other persons upon his return to Pakistan.

18.  It has been reiterated time and again that the primary responsibility for assessing the evidence, COI materials, risk of harm, state protection and viability of internal relocation lies with the Board. The Applicant has failed to identify precisely which specific COIs the Board had not taken into account with respect to his case and grounds. The Applicant has also failed to identify how the Board breached the principles set out in Shafqat Ali v Betty Kwan & Others, HCAL74/2012 (unreported, 17 December 2013) regarding the manner in which the Board should exercise its discretion when dealing with evidence.

19.  It is wholly inadequate for the Applicant to make vague assertions that the Board had improperly rejected the credibility of his entire case, or that its decision was “unfair, unreasonable, and illogical”.

20.  The role of the Court in a judicial review is not to provide a further avenue of appeal to an applicant. In the absence of errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings and decide the case afresh (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, etc.).

Conclusion

21.  For these reasons, I make an order that Form 86 be amended as described above and 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