ABBAS SADAQAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2092/2024

[2025] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2092 of 2024

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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Abbas Sadaqat (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 April 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 March 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Pakistani. He was born on 18 September 1983 in District Gujrat, Pakistan. He received 5 years of education and had around 5 years of work experience as a farmer.

The Claim

3.  The Applicant relied on a dispute with his 3 paternal cousins (“Cousins”) over a plot of land or plots of land (“Land”) jointly held by the Applicant, his brothers and Cousins, to claim protection. The Applicant, his 2 brothers and Cousins owned equal shares in the Land. The Applicant claimed that he tried to sell his share in the Land (“Share”) in 2006, but Cousins did not want him to sell to someone outside of the family.

4.  Cousins were members of the Muslim League-Qaaf Group (“PML(Q)”). Two of them (“S” and “F”) had good connections with powerful people such as members of Provincial Assembly and members of National Assembly. The Applicant also believed that Cousins had good relationship with the police officers in Pakistan.

5.  In 2008, the Applicant managed to find a buyer (“Buyer”) for the Share. However, S fired a pistol in the air in front of the Buyer trying to scare the Buyer off. When the Buyer remained interested in buying the Share, S went to the Buyer’s house with about a dozen people. They fired pistols in the air and the Buyer felt threatened (“Incident”). The Buyer later filed a police report and the police arrested S, but S was released after an hour. The Incident caused the Buyer to give up on buying the Share. The Applicant was very stress about the situation and getting mentally upset.

6.  After the Incident, when the Applicant ran into S in October 2008, S and his men pretended to be drunk and pointed guns at the Applicant which made him very frightened and caused him mental stress. Due to the mental distress, the Applicant had once accidentally cut the small finger of his left hand while cutting feed for the animals.

7.  The Applicant felt threatened and decided to leave Pakistan. He signed a power of attorney to his wife for the Share before leaving the country. His brother continued to farm on the Land after he left. His family was never harmed by Cousins.

8.  The Applicant claimed that he did not seek assistance from the Pakistani police because they would not give him any help and would only ask him for bribes.

9.  He claimed that he would be harmed or killed by Cousins if he were returned to Pakistan.

Procedural history

10.  The Applicant arrived in Hong Kong illegally on 9 April 2009 and was arrested by the police on the same day. On 12 April 2009, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The Director rejected the CAT Claim on 8 November 2013. The Applicant did not take the matter further. Thus, the CAT Claim was concluded.

11.  On 28 November 2013, the Applicant raised application for non-refoulement protection (i.e. the Claim). Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the Claim was assessed under the USM. The Director had considered the Claim on the remaining applicable grounds (other than the CAT Claim) under the USM, namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

12.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

13.  On 11 November 2024, the Applicant filed the Form 86 herein dated 6 November 2024 (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent.

14.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

15.  The Board’s Decision was issued on 13 April 2022. As such, the Applicant should have filed the Form 86 latest on 13 July 2022. The Form 86 was filed on 11 November 2024 and it was late.

16.  No application for extension of time to file the Form 86 was made by the Applicant.

17.  At the court hearing of 14 January 2025 (“Court Hearing”), the Applicant explained that the delay was due to some family matters. He admitted that the delay was his mistake but said that his son was kidnapped at that time. He was engaged in raising ransom to save his son and suffered from depression. However, later in the Court Hearing, it transpired that the Applicant’s son was kidnapped in early 2024 when the time under the RHC for filing of the Form 86 had long expired in July 2022. He then changed to say that he was engaged in other family matters without giving particulars of such family matters.

18.  In considering whether to extend time for applying for leave for judicial review, the court shall have regard to, inter alia, (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice; and (v) question of general public importance. (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015)

19.  The Applicant was late for more than 2 years and 3 months in filing the Form 86. This is a very substantial and inordinate delay by any standards. The explanation for the delay provided by the Applicant is far from satisfactory. I am of the view that this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

20.  As merits of the intended judicial review is a significant matter for consideration, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

The DOI Decision

21.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Cousins intended to harm the Applicant. This was because Cousins had never harmed the Applicant, his family or the Buyer. The Applicant alleged that he was threatened by Cousins since around 2006 but he did not take reasonable opportunity to avoid them until his leaving Pakistan in 2009. This indicated that he was not in fear of them as asserted.

22.  Even though Cousins occupied the Land, they still permitted the Applicant’s family to collect some of its produce and make a living. The Director did not accept that the relationship between the Applicant and Cousins was as bad as he described.

23.  The Applicant’s dispute with Cousins appeared to be totally private and localized in nature with nothing to do with the Pakistani government or politics. There was no information showing that the Applicant had been adversely targeted by the Pakistani authorities.

24.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Pakistani government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

25.  The Director was of the view that Cousins were not as powerful or influential as the Applicant asserted. The Director was not convinced that they would be able to mobilize substantial resources from PML(Q) to look for the Applicant across the entire country. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Islamabad or Karachi, Cousins would have great difficulties in locating him. After considering his background, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

26.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

27.  The Applicant was absent from the hearing before the Board scheduled for 21 September 2021. The Board sent him a letter notice on the same date informing him the Board’s intention to proceed to hear the Appeal in his absence and asking him to explain for his absence with supporting documents within 7 days after the notice was given. The Applicant made no response. The Board proceeded to determine the Appeal on materials before the Board pursuant to section 15 of Schedule 1A of the Immigration Ordinance Cap. 115.

28.  The Applicant explained at the Court Hearing that he failed to attend the hearing before the Board in September 2021 also because of family matters and depression.

29.  The Board found that due to his absence, it could not ask the Applicant to clarify the discrepancies between his accounts given at different stages of his protection claim. Based on the available evidence, the Board found that the facts relied on by the Applicant were untrue for the reasons given at §§36-46 of the Board’s Decision.

30.  The Board further found that even on the Applicant’s own accounts, there was nothing to suggest that Cousins had harmed the Applicant in the past or that they intended to harm him in the future. It found that he had exaggerated the risks from Cousins.

31.  Taking into account the differences in the claims made by the Applicant at different stages of his protection claim, the problems with his claims about the seriousness of the land dispute with Cousins, and the vagueness of his claims about Cousins’ political involvement, the Board considered that the Applicant’s claim had no general credibility.

32.  Because the Board held that the Applicant was not at risk from Cousins, who were the only sources of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return to Pakistan.

33.  The Board found that the Applicant had failed to establish his case on all applicable grounds (other than the CAT Claim) under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

34.  In a judicial review, the court does not step into the shoes of the decision makers.

35.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; 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 and Re Masoom Parvez [2018] HKCA 163.”

36.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

37.  In the Form 86, the Applicant did not put forward any grounds for his intended judicial review.

38.  In the Supporting Affirmation, the Applicant only stated that: “Respectfully, I write this Affirmation to know the Court that I don’t want to return back to my country because my life is still in danger in my country. So its my kindly request to the Court to please grant me leave to apply for judicial review. I attached an Exhibit with it.” He then produced the Board’s Decision with covering letters as exhibits.

39.  Although the Applicant stated in the Supporting Affirmation that he had also exhibited the decision of the Director to the Supporting Affirmation, no such decision was exhibited. As I have in any event considered the DOI Decision, the aforesaid mistake in the Supporting Affirmation has not caused any prejudice to this application of the Applicant.

40.  By a letter received by the court on 6 January 2025, the Applicant said that his legal aid application was under process and he had some documents about his case to submit. He requested the scheduled Court Hearing to be cancelled.

41.  The court has not received any memorandum from the Director of Legal Aid issued under section 15(3) of the Legal Aid Ordinance Cap. 91 on the Applicant’s alleged legal aid application. As such, there is no statutory stay of proceedings in this case under section 15(4) of the Legal Aid Ordinance. The Court Hearing took place on 14 January 2025 as scheduled.

42.  At the Court Hearing, the Applicant informed the court that the new documents he sought to produce were the police report on his son’s kidnap case. He said that his son was kidnapped by his enemies about 1 year ago. i.e. in early 2024 and was released after his family paying the ransom demanded.

43.  As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible.

44.  The aforesaid event occurred in early 2024 after the date of the hearing before the Board and thus could not have been obtained with reasonable diligence for use at the hearing before the Board. The Applicant had not produced copies of the police report at the Court Hearing. If they are true copies of the police reports, their credibility will likely be accepted. However, the Applicant confirmed that his son had been released after payment of ransom. Thus, it is clear that the kidnappers only aimed at extorting money from the Applicant’s family. It had nothing to do with the Land, the subject matter of dispute between the Applicant and Cousins. The documents have nothing to do with the Claim and would not have an important influence on the result of the case. Thus, one of the requirements of Ladd v Marshall was not satisfied and they would not be admitted as evidence in this intended judicial review. In any event, such documents do not advance the Applicant’s case.

45.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics in the Form 86 and/or the Supporting Affirmation as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. The Applicant confirmed at the Court Hearing that he himself was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

46.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the remaining applicable grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

47.  The Board found that the Applicant had provided no real basis for the assertion that Cousins would kill him should he return to Pakistan and he sought to change his story to exaggerate the nature of his dispute with Cousins. The Board regarded the Applicant’s vague claims about Cousins’ political connections as lacking in substance and credibility. The Board concluded that the Applicant’s claims had no general credibility. The board found that the Applicant’s claim to fear that he would be seriously harmed or killed by Cousins was untrue because he had sought to greatly exaggerate the seriousness of any actual dispute with Cousins. The Board was not satisfied that the Applicant had established that there were substantial grounds which supported the conclusion that he would face a real risk of persecution, ill-treatment or deprivation of life as claimed if he returned to Pakistan.

48.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

Conclusion

49.  The From 86 was filed out of time without leave from the court nor with good reasons. Having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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