ISHFAQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2943/2019

[2025] HKCFI 1705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2943 of 2019

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Ishfaq Muhammad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 July 2017 (“Board’s Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 21 December 2015 (“2015 DOI Decision”) and 22 December 2016 (“2016 DOI Decision”) (together “DOI Decisions”) 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 26 August 1989 in Punjab of Pakistan.  He obtained matriculation qualification in 2004.

The Claim

3.  The Applicant claimed that he had a dispute with his maternal uncles (“Uncles”) over a piece of land in Chakwal City (“Land”).  One of Uncles was a lawyer and the other was a District Police Officer at Chakwal City level.  They were said to be good friends of the Minister of National Assembly of the City of Chakwal.

4.  The Applicant claimed that his mother inherited the Land from his grandfather in 2000.  The Land was leased out and a commercial building was built on the Land.  The Applicant’s mother collected the rent from the lease.

5.  The Applicant’s mother added the Applicant’s name to the title deed of the Land in 2009.  She wanted the Applicant to inherit the Land when she passed away.  Uncles protested, claiming that the Land should be passed to them instead.

6.  The Applicant claimed that the sons of Uncles (“Cousins”) attacked him multiple times in around 2011.  In one attack, he suffered a broken bone, and it took him about 2 weeks to recover.

7.  In around June or July 2011, the Applicant’s brother and sister were killed in a car accident (“Accident”).  The Applicant’s parents believed that the Accident was staged by Uncles to murder his siblings.  His parents complained to the police at Dhudial Police Station.  The driver of the car involved in the Accident was arrested for dangerous driving causing death but the trial date was repeatedly adjourned.  The Applicant believed one of Uncles used his influence to interrupt the prosecution of that driver.

8.  The Applicant claimed that Uncles and Cousins went to his home in around January 2012.  After a heated argument, his father was shot 6 or 7 times (“Shooting Incident”).  Uncles were stopped by the Applicant’s other relatives after the shooting.  His father was hospitalized and it took him 23 days to recover.  The Applicant’s family made a police report, but the police refused to register the case and insisted that they reconciled with Uncles.

9.  After the Shooting Incident, the Applicant’s father sent him to live in Rawalpindi with the Applicant’s friend.  He stayed peacefully in Rawalpindi between March and September 2012.  Uncles continued to ask the Applicant’s mother to pass the Land to them during this period, but they did not cause any physical harm to the Applicant’s family.  With the help of his friend, the Applicant traveled to Mainland China.  He did not encounter any problem for his journey to Mainland China.  From Mainland, he sneaked into Hong Kong.

10.  The Applicant claimed that he would be harmed or killed by Uncles if he were returned to Pakistan.

Procedural History

11.  The Applicant arrived in Hong Kong illegally on 12 November 2012 and was arrested on the same day.  He lodged a torture claim on 14 November 2012 under Part VII of the Immigration Ordinance, Cap. 115 (“CAT Claim”) which was rejected by the Director on 27 December 2013.

12.  At the hearing of the Appeal before the Board on 28 April 2017, the Applicant confirmed that he would not appeal the decision of the Director in rejecting the CAT Claim. (§13 of the Board’s Decision)  Thus, the CAT Claim was concluded.

13.  By a written representation of 14 November 2013, the Applicant raised another non-refoulement claim (“NRC”).

14.  The Director had considered the NRC on the following grounds under the unified screening mechanism:

(a)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 3 risk”); and

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

15.  By the 2015 DOI Decision, the Director rejected the NRC.

16.  By a letter dated 22 November 2016, the Director invited the Applicant to submit additional facts which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the BOR, including right to life under Article 2 of Section 8 of the BOR (“BOR 2” and “BOR 2 risk”).

17.  The Applicant did not provide additional materials or facts on any other absolute and non-derogable rights under the BOR, particularly BOR 2 risk.  The Director further considered whether the Applicant would be subject to any risk of his absolute and non‑derogable rights under the BOR being violated upon his removal to another country (including right to life under BOR 2), in the light of the assessment on the risk of his feared treatment materializing upon his return to Pakistan as set out in the 2015 DOI Decision (“BOR 2 Claim”).

18.  By the 2016 DOI Decision, the Director rejected the BOR 2 Claim.

19.  The NRC and the BOR 2 Claim together formed the Claim in this case.

20.  The Applicant later filed an appeal/petition to the Board (“Appeal”) against the DOI Decisions.  By the Board’s Decision, the Board affirmed the DOI Decisions.  The Board rejected and dismissed the Appeal.

21.  On 8 October 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision and the DOI Decisions.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named both the Board and the Director as the proposed respondents and interested parties.

22.  On 29 October 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application, stating that he wished to go to England with his wife (“Withdrawal Application”).

23.  Subsequently, the Director informed the court that the Applicant had been removed in November 2024.  As such, I proceeded to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by way of paper disposal.

24.  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.”

25.  The Board’s Decision was issued on 5 July 2017.  The Applicant should have filed the Form 86 latest on 5 October 2017.  The Form 86 was filed on 8 October 2019 and it was late.

26.  The Applicant was late for more than 2 years in filing the Form 86. This is a very substantial and inordinate delay.  However, the Applicant had not applied for time extension to file the Form 86.  No explanation had been provided by the Applicant in the Supporting Affirmation for his late filing of the Form 86.  I have no basis to extend the time for the Applicant to file the Form 86 in this case.

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be.  As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

28.  For the sake of good order and completeness, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matters.

The DOI Decisions

29.  The Director noted that the low intensity and low frequency of past ill-treatment from Uncles was indicative of a small future risk of harm upon the Applicant’s return.  The Director noted that Uncles never physically attacked him in the past.  The most serious injury the Applicant received was a broken bone due to an attack by Cousins.  The Director also noted that Uncles did not target him during the Shooting Incident.  Also, there was insufficient evidence to suggest that Uncles were behind the Accident.  The Director was not satisfied that the threats the Applicant faced upon his return to Pakistan would exceed the minimum threshold of severity for claiming non‑refoulement protection.

30.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

31.  The Director further found that internal relocation would be viable to the Applicant.  If the Applicant moved to Karachi, it would be difficult for Uncles to locate him.  After considering his age and education, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

32.  For the reasons set out in the DOI Decisions, the Director rejected the Claim.

The Board’s Decision

33.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board found that the Applicant had not made out a case where non-refoulement protection was necessary.

34.  The Board noted that on the Applicant’s own evidence, he was not targeted by Uncles.  The dispute appeared to be between his mother and Uncles. Further, the alleged link between Uncles and the Accident was only a speculation by his family.

35.  The Board further noted that the actions by the Applicant suggested that he was not in need of non-refoulement protection.  He stayed in Mainland China for 2.5 months before coming to Hong Kong and he had been convicted of taking up unauthorized employment in Hong Kong after arriving in Hong Kong illegally. The Board was of the view that the Applicant did not come to Hong Kong for the purpose of seeking non‑refoulement protection.

36.  After a careful consideration of the COI, the Board found that state protection would be available.  The Board also found that internal relocation to Karachi or other areas in Pakistan would be viable to the Applicant.  The Board found that the Applicant exaggerated the power of Uncles in locating him.  It noted that the Applicant was able to stay in Rawalpindi for several months without any incident and this showed that Uncles’ influence could not reach every part of Pakistan.

37.  The Board found that the Applicant had failed to establish his case for the NRC and the BOR 2 Claim.  The Board affirmed the DOI Decisions and dismissed the Appeal.

Legal principles applicable to judicial review

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

39.  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.”

40.  In the Po Fun Chan case (supra), 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

41.  In the Form 86, the Applicant raised various complaints against the Director.

42.  In the Supporting Affirmation, the Applicant stated that he wished to appeal against the DOI Decisions in this application.  This was also stated in the Form 86.  This was misconceived.

43.  The Applicant had appealed against the DOI Decisions to the Board.  The Court of Appeal had pointed out in the Re: Ali Usman [2018] HKCA 955 at §21 that “as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”.  The same applies to this case.

44.  The Applicant may not have the second bite of the cherry to appeal against the DOI Decisions twice in the name of judicial review.  I accordingly dismiss the Applicant’s application for leave for judicial review of the DOI Decisions.

45.  The Applicant also raised the following complaints against the Board in the Form 86:

(1)  the Board failed to make sufficient enquiries before finalizing the determination;

(2)  he disagreed to the Board’s findings on his credibility; and

(3)  the Board had failed to give sufficient chance to the Applicant to arrange relevant evidence for the Claim and the Appeal.

46.  The Applicant exhibited the Board’s Decision and its covering letter but no other supporting documents to the Supporting Affirmation.

47.  The aforesaid complaints of the Applicant were bare assertions without particulars or supporting evidence.  Without particulars and supporting evidence, such grounds are not reasonably arguable.

48.  In the Board’s Decision, the Board set out the reasons for its findings leading to its decision in rejecting the Appeal.  I do not see any merits in the Applicant’s complaint of the Board not making sufficient enquiries before finalizing the determination.  In any event, such complaint was bare assertion without particulars and is not reasonably arguable.

49.  The Applicant disagreed to the Board challenging his credibility.

50.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

51.  In disputing the findings on assessment on evidence, risk of harm and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

52.  The Board proceeded to deal with the Appeal based on the Applicant’s evidence.  Although the Board found at §35 of the Board’s Decision that the Applicant had exaggerated the power of Uncles, the Board did not go to the extent of stating “that the applicant has failed to advice any credible evidence to prove material elements of his claim.” (last paragraph to Enclosure 2 annexed to the Form 86)  There is simply no factual basis for this complaint of the Applicant.

53.  The Applicant departed Pakistan to Mainland China in September 2012 and sneaked into Hong Kong in November 2012.  He lodged the CAT Claim in November 2012. A screening interview with the Applicant was held on 11 November 2013 (“2013 Interview”).  He had 1 year to prepare his case before he attended the 2013 Interview.

54.  On 31 December 2014, the Applicant submitted his supplementary claim form for the NRC.  Another screening interview with the Applicant was held on 29 May 2015 (“2015 Interview”).  The Applicant had another 1.5 years to prepare further evidence for the NRC before the 2015 Interview.

55.  The 2015 DOI Decision was issued in December 2015 when the hearing for the Appeal before the Board was held on 28 April 2017.  The Applicant had another 1 year and 5 months to prepare for the Appeal. From his departing Pakistan in September 2012 to hearing of the Appeal before the Board in April 2017, the Applicant had more than 4.5 years to prepare for his case.

56.  The Applicant stated in the Form 86 that he had been in custody at the Immigration Department Centre.  However, no particulars were provided as to when he was in custody.  I note that §9 of the 2015 DOI Decision stated that the Applicant were released on recognizance on 21 March 2015.

57.  In view of the aforesaid available information and without the Applicant providing more particulars and supporting evidence, I do not accept that the Applicant had been deprived of sufficient chance to arrange for his evidence. This ground is not reasonably arguable.

58.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decisions, 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.

59.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles for assessing the BOR 2 risk, the BOR 3 risk and the persecution risk; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

60.  For reasons stated in §19 of the Board’s Decision, the Board found that the Applicant had not made out a case where non-refoulement protection was necessary.  Furthermore, state protection was available upon his return to Pakistan.  Internal relocation to Karachi was also viable to the Applicant.

61.  In §§26-33 of the Board’s Decision, the Board considered the Claim under the BOR 2 risk, the BOR 3 risk and the persecution risk.

62.  The Board found that there was nothing to suggest that there was any real risk of the Applicant’s absolute and non-derogable rights including right to life under BOR 2 being violated upon his return to Pakistan.  The Board further found that it was unlikely that the Applicant would face a genuine and substantial risk of being subjected to the BOR 3 risk by Uncles upon his return to Pakistan.  The Board found that the Applicant’s fear of ill-treatment does not fall within the definition of “persecution” in that it was purely a personal dispute between him and Uncles over a piece of land and was not on account of any reasons referred to in Article 33 of the Refugees Convention.

63.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under the BOR 2 risk, the BOR 3 risk and the persecution risk.  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.

The Withdrawal Application

64.  By the Withdrawal Application, the Applicant sought to withdraw his application for leave to apply for judicial review.  He stated that he wanted to go to England with his wife and close all his cases.

65.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

66.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

67.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

68.  The Form 86 was filed out of time and without leave of the court nor satisfactory explanation for the late filing and having considered the Board’s 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.

69.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of his address for service, the court will send a copy of this judgment and the sealed order to the Applicant at his address stated in the Withdrawal Application with copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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