MEHMOOD QAISER v. TORTURE CLAIMS APPEAL BOARD

HCAL 3353/2019

[2025] HKCFI 3117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3353 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 5 November 2019”. 

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 11 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect “the decision of Immigration dated 5 November 2019”.

2.  However, the decision dated 5 November 2019 in respect of his non-refoulement claims was in fact made by the Torture Claims Appeal Board ("the Board"). The applicant also annexed a copy of the Board’s decision dated 5 November 2019 (“the Board’s Decision”) to his supporting affirmation dated 11 November 2019. Thus, it is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003353_2019_files/the_Board's_Decision.pdf

3.  The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). The Board refused the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 22 November 2018, which rejected the applicant’s claim for non-refoulement protection.

4.  The applicant had previously made a torture claim on 9 May 2009. The Director rejected his torture claim on 16 January 2014. The applicant did not file an appeal against that decision. Thus, his Torture Risk[4] had been assessed and finally determined.

Amendments

5.  The applicant named “Torture claim board” as the putative respondent and did not name any putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 5 November 2019”.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Pakistan, he would be harmed or killed by his paternal cousins, who were affiliated with a notorious gangster named Jano, due to a land dispute.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 November 2019. The applicant merely stated in his supporting affirmation that he had a land dispute with his cousins (family dispute). His parents were trying to resolve the issue but still not successful.

Discussion

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

14.  In assessing the appeal by the applicant, the Board held an oral hearing on 19 September 2019. The Board questioned the applicant for details regarding his claims but was not satisfied that the applicant’s claims were truthful. The Board found that the applicant had fabricated his claims in order to apply for non-refoulement protection and extend his stay in Hong Kong.

15.  The Board found numerous significant inconsistencies in the applicant’s written and oral evidence. While the applicant claimed to have been tortured by his cousins since 1998, he admitted during the Board’s hearing that the first attack only happened in 2009. The Board had significant concern about the applicant’s evidence in relation to the land dispute because the applicant was not even the owner of the land and did not have the right to transfer the land into another name. His father who owned the land was not confronted or attacked by the cousins. The Board found it not credible that the cousins did not confront the applicant’s father because he was old or he was a senior member of the family.

16.  The Board also found that the applicant was inconsistent on whether he was the only son of his father who farmed the land. He was inconsistent in providing details of the attacks regarding the location of the attacks, the people involved in the attacks, whether and what weapons were used, whether Jano was involved in any physical attack and whether the applicant sought medical treatment, etc. The Board found the attacks did not actually take place.

17.  The Board found it surprising that the applicant could not remember he had been arrested. The Board also rejected his evidence that one of his brothers named Younus left Pakistan to Saudi Arabia for fear of being attacked by the cousins. Younus was not attacked for 4 years before he left Pakistan. The brother named Yousaf who mainly helped the applicant to farm the land was still living in Pakistan without trouble. The Board did not accept the passage of time and the applicant’s illiteracy were the reasons for the numerous inconsistencies.

18.  Due to the numerous significant inconsistencies and the lack of credibility of the applicant’s claims, the Board concluded that the applicant was never harmed or threatened by his cousins, he was never arrested by the police or granted bail, and he or his brothers were never harmed or beaten by their cousins or their associates over the disputed land. The Board was not satisfied that the applicant left Pakistan for the reasons he had claimed. The Board therefore concluded that there was not a real risk the applicant would face any harm should he return to Pakistan.

19.  The Board did not find there was a real risk that the applicant would be harmed by the Pakistani police or authorities at the behest of his cousins or Jano, or that the police would withhold protection for him.

20.  Although the Board did not consider internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

22.  The assessment of evidence and risk of harm are primarily within the realm of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. The Board’s Decision is not unfair or unreasonable. The applicant’s alleged danger from his cousins had been duly assessed and rejected by the Board.

23.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.  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 has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is dismissed.

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