IQBAL HASSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1715/2020

[2025] HKCFI 5363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1715 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of documents and Applicant being absent in open court

(1)  Form 86 be amended, adding the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 25 August 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of (i) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 12 August 2020 (“the Board’s Decision”); and (ii) the Director of Immigration (“the Director)’s decision dated 16 November 2018 (“the Director’s Decision”). The Board affirmed the Director’s Decision, dismissing the Applicant’s claim for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by Mr. Ghulam and members of Mr. Ghulam’s family in Pakistan upon return, together with the relevant immigration and procedural history, were set out in the Board’s Decision. It is unnecessary to repeat them, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  For the reasons set out below, I am not satisfied that the Applicant’s proposed application for judicial review is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). Accordingly, leave is refused.

4.  The Applicant’s intended application to challenge the Director’s Decision stands to be rejected, as it is misconceived in light of both the existence and implications of the two‑tier system (see Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  Turning to the Board’s Decision, I have reminded myself of the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). Having carefully reviewed the decision, I am unable to accept that is Wednesbury unreasonable or unfair as contended by the Applicant.

6.  The Board, as the primary decision-maker, assessed the evidence, COI information, risk of harm, availability of state protection, and viability of internal relocation, and made determinations within its remit as follows:

(1)  It is evident from the Board’s Decision that the Board gave substantive consideration to the core elements of the Applicant’s case. The Applicant claimed that he was involved with the Pakistan Tehreek-e-Insaf (PTI) and had participated in protests against the former ruling party, the Pakistan Muslim League (Nawaz) (PML(N)). He alleged that, as a result of this involvement, he was threatened, assaulted, and falsely implicated in the murder of a police officer. He further claimed that, owing to his party’s influence, the murder case relating to the police officer was ultimately dismissed, but that he was subsequently framed in connection with another murder case, in which he was alleged to have acted as a “middleman”.

(2)  The Board was clearly aware of the substance of the Applicant’s objections to the Director’s Decision. In his application to the Board, the Applicant claimed that his case had been misrepresented, that the Director had acted with “hypocrisy”, and that the case officer had failed to read the documents he submitted. He further alleged that he was a “wanted” person and a person of interest, and that he had been unable to obtain proper protection. He asserted that he would be left to “rot” in jail for decades in order to prove his innocence, and referred to what he described as numerous examples of such treatment occurring in Pakistan.

(3)  An interpreter fluent in both English and Punjabi was provided to assist the Applicant during the proceedings. With the benefit of language assistance, the Applicant was able to present his case and give evidence before the Board at the hearing on 15 January 2020.

(4)  The Board had regard to the relevant factors in assessing the Appellant’s credibility. Having considered the totality of the evidence, the Board noted with considerable concern that the Applicant’s claims had altered significantly across his written representation, NCF, interview, and his oral evidence at the hearing. The Board concluded that the Applicant was an untruthful witness who was willing to fabricate claims and evidence when he considered it convenient to do so.

(5)  At one stage, the Board even drew the Applicant’s attention to numerous inconsistencies between his written and oral claims, particularly in relation to his involvement with PTI, the incident in which he was allegedly harmed, the 2013 election, and the protests activities he described. The Applicant was asked to explain why there were so many inconsistencies in his account. In response, the Applicant stated that he had forgotten certain details and was under stress, as a false murder case had been filed against him.

(6)  After considering the Applicant’s claims, the supporting evidence, and the broader context, the Board concluded that it was not satisfied that any of the Applicant’s assertions regarding his involvement with PTI, the Dharna movement, or the false cases were credible. Nor was the Board satisfied that the Applicant was a person wanted by the police or the family of Hassan Iqbal. Accordingly, the Board was not satisfied there was a real chance, a real risk, or substantial or strong grounds for believing that the Applicant would suffer serious harm amounting to a torture, a risk to his life, CIDTP/torture, or persecution upon return.

(7)  Specifically, having considered all the evidence, the Board rejected the Applicant’s non‑refoulement claim insofar as it was based on a risk of torture. The Board was not satisfied that there were substantial grounds for believing that the Applicant would face a real risk of torture at the hands of the authorities due to any outstanding charges of conspiracy to commit murder. Nor was it satisfied that he would be harmed by individuals associated with PML(N), the police or any political party.

(8)  As regards the claim under BOR 3, the Board also rejected the Applicant’s case on that basis. The Board was not able to accept that any of the Applicant’s assertions were truthful. The Board was not satisfied that the Applicant would be sought by the authorities in connection with any outstanding criminal charges, PML(N) or the family of the deceased. Accordingly, the Board was not satisfied that there were substantial grounds for believing that the Applicant would face a real risk of being subjected to torture or CIDTP in Pakistan.

(9)  The Board likewise rejected the Applicant’s non-refoulement claim under BOR 2. For the same reasons set out above, the Board was not satisfied that the Applicant’s case engaged the protection afforded by BOR 2. In particular, the Board was not satisfied that the Applicant would face death penalty, arbitrary deprivation of life, or genocide on account of his alleged involvement with PTI, the Dharna movement in 2014, or the murder.

(10)  The Board held that the Applicant’s claim on the ground of persecution risk was not substantiated, as it was not satisfied that he had a well-founded fear of persecution for any of the reasons protected under law. The Board essentially found that the Applicant had fabricated the entirety of his claim. It had regard to the documents the Applicant provided, which were either wholly fabricated or materially altered, and did not support his account. The Board was not satisfied that there was a real chance or a real risk that the Applicant would suffer harm amounting to persecution at the hands of the Pakistani authorities, opposing political parties, the family of the murdered man, or any other persons, for reasons of his actual or imputed political opinion, race, nationality, religion or membership of a particular social group.

7.  Apart from making general assertions, the Applicant has not identified or explained how or why the Board’s Decision was “unreasonable” or “unfair”. Nor am I satisfied that it was. On the contrary, the Board’s determinations were made within the scope of its powers, following a careful and reasoned assessment of the relevant evidence and the legal framework. In the absence of any error of law, irrationality, or procedural unfairness being established in relation to such decision, the Court should not interfere (see Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

Conclusion

8.  In light of the above, the Leave Application is 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