FAHEEM CHAUDHRY MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 211/2021

[2025] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 211 OF 2021

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 the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 August 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Pakistan who had repeatedly in the past entered Hong Kong illegally and was inevitably repatriated to his home country again on 20 December 2006 sneaked back into Hong Kong, and upon his arrest by the police on 18 January 2007 and was subsequently referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohalla Baghbanpura, Lahore, Punjab, Pakistan. After leaving school he worked in his brother’s electronic shop in his home district where his father had had a long history of land disputes with their neighbour the Sakkay family when the Applicant was just a small child, and that he was told by his mother that those land dispute eventually led to the killing of his father in 1981 by one of the members of the Sakkay family.

3.  While as a teenager the Applicant dated a girl from his school without realizing that she was from the Sakkay family, but later when he proposed to marry his girlfriend, and when her family discovered his background, they disapproved of their relationship and threatened the Applicant to stop seeing his girlfriend, and even sent men to beat him on one occasion with wooden sticks that the Applicant lost consciousness and was subsequently taken to a local hospital for medical treatments.

4.  Thereafter the Sakkay family made arrangements to marry his girlfriend to another man, whereupon the Applicant and his girlfriend eloped to Gujrat of Punjab intending to get married there, but subsequently upon being told by his mother that the Sakkay family had kidnapped his younger brother to force them to cancel their intended marriage, which the Applicant did and returned his girlfriend to her family, whereupon his brother was released unharmed.

5.  Later upon hearing the Sakkay family had killed his girlfriend as a result, the Applicant’s mother feared that they would next come after the Applicant, and therefore arranged for him to leave the country in March 1997 for Hong Kong where he subsequently overstayed, and was eventually arrested by police and repatriated to Pakistan in December 2000.

6.  Upon returning to Pakistan, the Applicant was afraid to return to his home district in Lahore and instead stayed in Kasur in Punjab, but when he was alter told by his mother that the Sakkay family were still looking for him everywhere, the Applicant departed the country again in February 2001 for Hong Kong on a different passport and identity, and where he subsequently again overstayed until his arrest by the police in December 2004 and was repatriated to Pakistan in February 2005.

7.  Again the Applicant was afraid to return to his home and instead stayed in a friend’s place in Lahore, but one day in March 2005 when he spotted some members of the Sakkay family in the neighbourhood, and when he tried to run away from them, he heard some gun shots being fired from behind, and although he managed to make his escape from them without being shot, he fell and fractured his left leg which subsequently required medical treatments.

8.  After the last incident the Applicant felt it was not safe to remain in Pakistan, and so he again departed the country in November 2006 for China, and from there he later sneaked into Hong Kong again, and upon his arrest by the police he then raised his torture claim, and after it was rejected he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 17 January 2019 and attended screening interview before the Immigration Department with legal representation.

9.  By a Notice of Decision dated 25 February 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Sakkay family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from seeing his girlfriend that it is not accepted that there would still be any adverse interest in him after all these years since he left the country, that in any event it was a private dispute between him and the Sakkay family only without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 207 million people spread across a vast territory of more than 770,000 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 the Sakkay family to locate him.

11.  On 2 April 2019 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 10 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found no reliable evidence of any real intention of the Sakkay family to seriously harm or kill the Applicant over his past relationship with his former girlfriend or that they would still have any adverse interest in him after all these years since he left the country, and that in any event it was a private dispute between him and the Sakkay family only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 23 February 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date and a subsequent written submission he repeated his claim and referred to various applicable principles before putting forward various grounds for his intended challenge which can be summarized as follows:

(1)  That the Adjudicator erred in determining that there is no realistic prospect of success in the Applicant’s claim;

(2)  That the Adjudicator placed an unnecessarily high threshold in determining the realistic prospect of the Applicant’s claim as his life was clearly at stake;

(3)  That the Adjudicator was biased and made his decision based on many assumptions without allowing the Applicant an opportunity to explain himself or to elaborate himself;

(4)  That the Adjudicator failed to provide any proper basis to challenge the credibility of the Applicant’s case or to reject his claim.

14.  By then the Applicant was however 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.

15.  As the last day of the three-month period for him to file his Form 86 fell on 1 December 2020 after discounting the month of August for court’s vacation, and hence the Applicant was therefore more than 2 months 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.

16.  In the Applicant’s case, a delay of more than 2 months must be considered as substantial and inordinate, but for which he did not provide any explanation or reasons in his Form or affirmation, and at the hearing of his application he just asserted that he has been detained by the Immigration Department at Tai Tam Gap Correctional Institution that he required time to seek help with his application which caused the inevitable delay.

17.  The record shows that the decision was sent on the same day of 7 August 2020 to his then reported address without being returned through undelivered post, and given the fact that he has only recently been detained and not at the relevant period, I am not satisfied that the Applicant has provided a good or valid reason for his serious delay.

18.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as listed above are however all just bare and vague assertions without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator was biased or made his determination based on assumptions, or how was the Applicant being prevented or not given the opportunity to explain or elaborate his claim when he was able to make his representations during the appeal hearing without any problem and with the assistance of an interpreter. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant in his Form or affirmation, nor was he able to do so at the hearing of his application, I do not find any of his proposed grounds reasonably arguable for his intended challenge or any merits in his intended application.

19.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

20.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

21.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

23.  For all these reasons I am not satisfied that there is any merits or prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

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