IJAZ MUHAMMAD FAISAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 246/2021

[2026] HKCFI 386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 246 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 of the decision of Torture Claims Appeal Board dated 5 October 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 42-year-old national of Pakistan who entered Hong Kong illegally on 9 June 2019 and surrendered to the Immigration Department on 13 June 2019 when he raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by some fellow villagers for having witnessed a murder committed by them in his home village.  

2.  The Applicant was born and raised in a village in Sialkot, Pakistan. After leaving school he worked as a tailor in his home village to make his living.

3.  One evening in February 2014, while on his way home the Applicant saw 5 fellow villagers who were all cousins of the Jutt family beating another villager and eventually killing the victim with a knife before fleeing the scene.

4.  The murder was subsequently reported by some villagers to the police who then arrested the 5 Jutt cousins, but eventually only 2 of them were convicted and sent to prison, while the other 3 cousins were released.

5.  Several months later in mid-2014, the Applicant ran into those 3 Jutt cousins in town who accused him of reporting the murder to the police and proceeded to attack him by hitting in him in the head with a broken bottle, but the Applicant managed to flee from the scene to seek medical treatments.

6.  As a result, the Applicant became fearful for his life and fled to Karachi to take shelter in his cousin’s place until early 2015 when he returned to his home village.

7.  However, a few months later he was ambushed by those 3 Jutt cousins who abducted him to some abandoned farmhouse and beat him repeatedly with wooden sticks until someone heard his screams and came to intervene that those Jutt brothers then left and that the Applicant was able to seek medical treatments at some local clinic.

8.  Afterwards the Applicant was advised by his father to save his life by leaving the country in December 2016 for United Arab Emirates where he worked as a tailor until July 2018 when he returned to his home village in Pakistan.

9.  Soon the threats from the Jutt cousins returned and on one occasion they attacked him with an iron rod, and although he managed to escape without serious injuries, the Applicant felt it was no longer safe to remain in the country, and so on 12 May 2019 he again departed Pakistan but this time for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.  By a Notice of Decision dated 5 September 2019, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

11.  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 Jutt cousins 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 given the many opportunities they had had before to do so, that in any event in the absence of 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 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 Lahore or Faisalabad where it would be difficult if not impossible for those Jutt cousins to locate him.

12.  On 11 September 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 28 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

13.  In its decision[1], the Board accepted the Applicant’s claim of having received threats from the Jutt cousins after having witnessed them committing a murder in his home village but found even on the factual basis of his own case that the main culprits had already been arrested and sent to prison, while the threats from the rest of the cousins were just angry words and empty threats with no reliable evidence of any real intention to seriously harm or kill him, and that in any event state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by the Jutt cousins that his claim for non-refoulement protection failed on all applicable grounds.    

14.  On 1 March 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.     

15.  By then the Applicant was also 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.

16.  As the last day of the three-month period for him to file his Form 86 fell on 5 January 2021, the Applicant was therefore almost 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.

17.  In the Applicant’s case, a delay of almost 2 months must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was then suffering from some leg injuries which required medical treatments at some local hospital that he was unable to make his application within the required period, but in the absence of any further details or particulars or documentary evidence to corroborate his bare assertions, I am not satisfied that he has provided a valid reason or justification for his serious delay.      

18.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward any proper ground for his intended challenge either in his Form or at the hearing of his application. As such, and in the absence of any error of law or irrationality 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 merits in his intended application either.

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

21.  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.

22.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay with his application, 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