AMJAD FAROOQ alias ABID ALI alias AMJAD NAZIR AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 313/2021

[2026] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 313 OF 2021

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

Following:

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 30 November 2016 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Pakistan who had in previous occasions arrived in Hong Kong as a visitor under various identities and subsequently overstayed, and upon his arrests he was invariably repatriated to Pakistan, and on 24 January 2009 he again entered Hong Kong illegally and was arrested by police on 17 February 2009 for which he was subsequently convicted and sentenced to prison for 12 months.  Upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed or persecuted by his family and the Muslim community as well as the Pakistani authorities for the crime of blasphemy for converting his religion from Islam to the Ahmadiyya faith and then to Christianity.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Gurjanwala, Punjab, Pakistan.  After leaving school he worked as a welder in his home district to make his living.

3.  In 2002 he met and dated a widow by the name of Nasreen in his home district who was an Ahmadiyya, a religious minority declared officially as non-Muslim in 1974 and legally barred from identifying as Muslims or practicing their faith opening, which had led to widespread discriminations persecutions and violent attacks against them.

4.  Nevertheless in 2003 the Applicant secretly married Nasreen in Daska, Salacot without informing his family, and thereafter moved to live with her and her daughter, and several months later he also converted his religion to the Ahmadiyya faith in a mosque in Daska.

5.  However, when his family subsequently came to know about his marriage and religious conversion, his father and uncle Sharif became furious at him, and one day they came to the Applicant’s home to demand that he abandoned his Ahmadiyya faith and to return to being a Sunni Muslim or else to face the consequences for betraying his family.

6.  Several weeks later one day while he was on his way to work, the Applicant was confronted by his uncle Sharif who accused him of failing to heed his demand and slapped him several times on the face, and before he left Sharif warned him that if he still failed to return to being a Sunni Muslim, he would face very serious consequences.

7.  A few days later Sharif and his men came to the Applicant’s home looking for him, but when they were told that the Applicant had gone out to work, Sharif threatened his wife Nasreen to leave the Applicant and to get out of town.

8.  Several weeks later Sharif returned with his men again looking for the Applicant who was however out of the house, whereupon they proceeded to beat Nasreen with wooden sticks all over her body, and when they left they also pushed her daughter to the ground.

9.  About a week later the Applicant was confronted by Sharif and his men on the street who again demanded that he leaves Nasreen and to abandon the Ahmadiyya faith, and when he refused, they proceeded to beat him by punching and kicking him all over his body, and before leaving Sharif warned the Applicant that next time he would kill him if he still failed to heed his demand.

10.  As a result the Applicant became fearful for his safety and fled with Nasreen and her daughter to Ghakhar Mandi to take shelter at the home of a friend Shahbaz before moving on to Daska in Sialkot to stay with Nasreen’s uncle, and then to Rabwah in Sargodha and finally to Islamabad.

11.  In late August 2005 on his friend’s advice the Applicant by himself departed Pakistan for China as he could not afford to bring along Nasreen and her daughter, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim to the Immigration Department and also applied to the UNHCR for refugee status, but after being told by Nasreen on the phone that she was suffering from some serious illness, he then abandoned his claim and was repatriated to Pakistan on 21 November 2006.

12.  Upon returning to Pakistan he brought Nasreen to the hospital for medical treatments, and upon her subsequent discharge from hospital they then moved back to Ghakhar Mandi to stay in Shahbaz’s place, and resumed attending an Ahmadi mosque in Gujranwala.

13.  However, one day in September 2007 while on his way to the mosque, the Applicant was forcibly taken by some unknown men to the Sabzimandi police station where he was threatened by some police inspector and Sharif’s son Zaheer to leave the Ahmadi faith to return to being a Muslim, and in order to pacify them the Applicant agreed to go home to talk to Nasreen, and was released from the police station after Zaheer had called the Applicant’s father to take him home.

14.  However, in the same evening Sharif and Zaheer arrived to beat the Applicant by punching and kicking him until they were restrained by his mother, and before they left they warned the Applicant for the last time to abandon the Ahmadi faith and to revert back to be a Muslim or else they would kill him.

15.  After being kept at home for several months the Applicant was eventually allowed by his father to leave the house in November 2007, whereupon he went to visit Nasreen and then to pray at the Ahmadi mosque, but on his way home he was confronted by Zaheer who had been following him, and together with his men Zaheer took him to some empty farmhouse in Gujranwala where they beat him repeatedly until the evening when they left for dinner, whereupon the Applicant managed to make his escape from the farmhouse and fled to hide in Shahbaz’s home before moving with Nasreen and her daughter to Islamabad to stay in another friend’s place.

16.  As the Applicant felt it was no longer safe to remain in Pakistan, he therefore made arrangements to leave the country again for Hong Kong together with Nasreen and her daughter, but subsequently upon the advice of Nasreen’s doctor that she was not fit to travel due to her poor health, the Applicant therefore in late 2008 departed Pakistan by himself for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

17.  Whilst being released on recognizance pending the determination of his claim, the Applicant resumed his daily prayers at a mosque in Tsim Sha Tsui, but gradually became disillusioned with the teachings of Islam, and started to shift his interests to Christianity under the influence of his Christian friends in Hong Kong and regularly attended the Faith Evangelical Church, and on 5 April 2011 he converted his religion from Islam to Christianity by being baptized at the church, and for which he was issued a certificate of his baptism by the church.

18.  However, the Applicant soon realized from his family who also disapproved of his conversion into Christianity that it is considered to be a more serious crime in the eyes of the Muslims, as according to the Islamic law such conversion is regarded as a blasphemy, and hence he raised such risk to the Director as the primary basis for his non-refoulement claim for protection in place of his previous claimed fear as an Ahmadi at the screening interview of his claim before an immigration officer.

19.  By a Notice of Decision dated 10 February 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

20.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risks of harm from his family and/or the Muslim community due to initially his conversion to the Ahmadiyya faith and then to Christianity in Hong Kong upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that he had suffered no serious injuries from attacks by Sharif or Zaheer that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private religious dispute between them within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to, while there is no evidence of any threats from anyone against him for his religious conversion from Islam to Christianity in Hong Kong, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for anyone to locate him.

21.  On 24 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 November 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

22.  In its decision[1] the Board found no reliable evidence of any real intention of his family to seriously harm or kill him prior to his departure of Pakistan in 2008 as on all those occasions of him being assaulted that his assailants only used their bare hands and no weapons were ever employed and that he was never seriously injured, that he has no reasons to have any further contact with his family if he were to return to Pakistan as his parents and some siblings are deceased while he does not know the whereabouts of the rest of them, that it is most unlikely that those people who had harassed him in the past including Sharif and Zaheer and that police officer would still have any interest in him after all these years since he left the country in 2008, and that there are Christian communities in Punjab, Sindh, Islamabad and Khyber Pakhtunkhwa where he can easily relocate to and be safe amongst the Christian communities living there that his claim for non-refoulement protection failed on all applicable grounds.

23.  Meanwhile the Director on 16 January 2017 also invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 6 February 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

24.  The Applicant never sought any appeal to the Board against this Further Decision of the Director, but on 9 March 2021 he filed a Form 86 for leave to apply for judicial review of the Board’s decision of 30 November 2016, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he rejects the Board’s decision as it disregarded his dangerous situation but without providing any further details or particulars as to how it did so, nor was he able to do so at the hearing of his application other than just repeating his claim as before of his fear of being persecuted or killed for the crime of blasphemy if refouled to Pakistan due to his religious conversion from Islam to Christianity.

25.  Nevertheless, given the seriousness of the issue at hand and the gravity of the consequences of the Board’s decision to dismiss the appeal, high standards of fairness require that the reasons or basis for the rejection of the Applicant’s claim be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process, in particularly whether the Board did “disregard his dangerous situation” arising from his religious conversion upon his return to Pakistan as so submitted by the Applicant in his affirmation and at the hearing of his application.

26.  However, it is clear that the Applicant was by then seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason to extend the period within which the application shall be made.

27.  As the last day of the three-months period for him to file his Form 86 fell on 28 February 2017, hence the Applicant was some 4 years late with his application, and in considering whether to extend time, the court shall have regard to (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: AW v Director of Immigration [2016] 2 HKC 393.

28.  In the Applicant’s case, a delay of 4 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that as he was ignorant and without legal assistance that he was not aware of this procedural requirement until much later when on one occasion of his report on his recognizance to the Immigration Department that he was so informed by his immigration officer, but by then he was already seriously out of time with his intended application.

29.  The record shows that the Board’s decision was sent on the same day of 30 November 2016 to the Applicant’s then reported address without being returned through undelivered post, and as ignorance of the procedural rules can never be accepted as any justification for their non-compliance, I am not satisfied that the Applicant has any good reason or justification for his such serious delay.

30.  As for the merits of his intended application, I shall proceed to consider the Board’s reasons for rejecting the Applicant’s non-refoulement claim and dismissing his appeal as stated in the decision, in which the Board first set out its assessment of the Applicant’s case and his claim as follows:

“Strength of the Applicant’s Case

16.  From the time when the Appellant first married his wife in 2003 until the time when he came to Hong Kong in 2008, the Appellant was subjected to physical assault on 5 occasions, and on each occasion the assailant/s only used his/their bare hands and no weapons were ever employed. He was never seriously injured. These assaults do not appear to have had any great impact on the Appellant and this is shown by the fact that at the oral hearing he did not refer directly or indirectly to any of these incidents but talked generally of the persecution by Muslims or other religious minorities like the Ahmadi religion and Christians.  As I mentioned above, it seemed to me at the oral hearing that the Appellant was more concerned with the general situation in Pakistan of possible discrimination against religious minorities by the Muslim population.

17.  He has no reason to have to contact his family if he were to return to Pakistan. His parents and 2 other sisters are deceased. His present family in Pakistan consists of one married sister and one brother whose whereabouts he does not know.  The last time he contacted his sister was in 2013 or 2014.  The last time he contacted his wife Nasreen was in 2010 or 2011 and there have been no further contact since then.

18.  He has been in Hong Kong off and on since November 2005.  The last time he was in Pakistan was in 2008.  He again left Pakistan that year when he went to China and then entered Hong Kong. He has been in Hong Kong since then.  In my view, it is most unlikely that the people who harassed him namely, his uncle Sharif, his cousin Zaheer and a police inspector will still have any interest in the Applicant or the religion that he now follows.

Assessment of the Appellant Case

19.  I find that if the Appellant were returned to Pakistan, he can easily relocate to another part of Pakistan where he did not live before. He received training as a welder and according to him, he did work as a welder in Pakistan for 2 companies.

20.  He admits there are Christian communities living in Punjab and in Sindh provinces.  He agrees that there are 3 to 6 million Christians living in Pakistan and the majority of them live in Punjab, Sindh, Islamabad and Khyber Pakhtunkhwa.  In my view, he can easily relocate to these places and be safe amongst the Christian communities living there.”

31.  It was on the basis of these findings that the Board proceeded to find that the Applicant had not shown the existence of any real risk of being harmed or tortured or ill-treated under any applicable grounds upon his return to Pakistan, nor is there any logical reason for those persons who had previously harassed or attacked him to still have any adverse interest in him after the 8 years that he has been out of the country, while as a Christian he can easily and safely relocate to places with Christian communities such as Punjab or Islamabad that the Board therefore dismissed his appeal (see [21] – [24] of the Board’s decision).

32.  It is however clear from the above that by the time of his screening interview before the Director in 2015, the Applicant’s case has changed from fear of being harmed by his family over his religious conversion to become an Ahmadi to what he now claims to be a more serious risk of being harmed or persecuted by Islamic extremists and the Pakistani authorities for the crime of blasphemy according to the Islamic law for converting his religion from Islam to Christianity which may attract the death penalty, a claim clearly recorded in the Director’s decision at para 80 as follows:

“You are no longer an Ahmadi but you still feared of returning to Pakistan because your conversion to Christianity is considered to be a more serious offence than to the Ahmadiyya according to Islamic law. Your family would not accept it. You would be killed because the Muslim extremists would consider you as ‘kafir’ which meant ‘non-believer’.”

33.  The Director also referred to the relevant COI on the crime of blasphemy in Pakistan at para 111(iv):

“Section 295C Pakistan Penal Code (“PPC”) provides for the death penalty or life imprisonment for blasphemy in Pakistan [Item 3 of Appendix] that ‘Use of derogatory remarks, etc., in respect of the Holy Profit. Whoever by words, either spoken or written or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

34.  This claimed fear of the Applicant of being liable to life imprisonment or death penalty for his religious conversion from Islam to Christianity upon his return to Pakistan was also recorded in his evidence by the Board in its decision at para 4(l):

“He said there was a law in Pakistan which said that if a person converted from Islam to another religion, he would be liable to life imprisonment or the death penalty. He was referred to the Home Office Country of Origin Information Report on Pakistan dated 9 August 2013 which states “The constitution states that “subject to law, public order, and morality, every citizen shall have the right to profess, practice, and propagate his religion”. (page 203 of the Bundle) His reply to that was that it was discussed that religious conversion from Islam to another religion may be added to the list of acts which can be regarded as Blasphemy.”

35.  Since it does not appear from its decision that the Board had taken any issue with the credibility of the Applicant’s claim as to his religious conversion from Islam to Christianity in Hong Kong, and that with such clear indication as noted above of a possible risk of being held liable for the crime of blasphemy, it seems to me reasonably arguable that in rejecting the Applicant’s claim and dismissing his appeal the Board (1) failed to properly consider such claimed risk of the Applicant or at all, and/or (2) failed to make proper assessment of or at all the relevant and current COI on the crime of blasphemy for religious conversion from Islam to Christianity in Pakistan in order to determine whether the Applicant would indeed risk being liable or subjected to prosecution or persecution for such crime by the Pakistani authorities or the Islamic extremists upon his return to Pakistan, and/or (3) erred in law in finding that internal relocation alternatives would be available to the Applicant to minimize or negate such risk when the state or state actors are involved.

36.  In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on those grounds as stated above, and to have merits in his late application, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

37.  Accordingly, I extend time to his late application, and grant leave to the Applicant to apply for judicial review of the Board’s decision on those grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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