BACHA MIAN RASOOL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 633/2022

[2026] HKCFI 3230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 633 of 2022

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.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 19 July 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 13 July 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

Background

2.  The Applicant is a Pakistani national, now aged 30. He sneaked into Hong Kong from Mainland China on 25 June 2020. He lodged a non-refoulement claim. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims, if returned to Pakistan, he will be harmed or killed by his uncle because of a land dispute.

4.  His case is that in around 2001 when he was around five years of age, his father bought a piece of land of approximately 2 to 2.5 kanals (the “disputed land”), but all documents of ownership had been lost in a flood in around 2010. However, his uncle was in possession of the stamp paper issued in respect of the sale of the disputed land. Being a supporter of the ANP political party and a close friend with a former member of the Provisional Assembly (“Khan”), his uncle is very influential in his home village. Around June 2019, the Applicant’s father started laying foundations to build a house on the disputed land. On the next day, his uncle demanded the Applicant’s father to transfer the land to him otherwise he would kill the Applicant, being the eldest son of the family. The Applicant’s father refused. The uncle had not threatened to harm the Applicant’s father. But on the following day, the uncle and his three sons assaulted the Applicant and his father while they were on the way to the disputed land. The Applicant lost some teeth and took a week to two to recover. His father’s eye was injured and required a surgery. The Applicant did not report the attack to the police because he thought the police would not help him as his uncle had Khan’s support. After he recovered, he moved to his maternal uncle’s home in Mardan to avoid his uncle. His uncle did not take any further action to assert his claim of the disputed land, except calling the Applicant’s maternal uncle and threatening to kill the Applicant. As his maternal uncle was socially well placed, the Applicant believed his uncle was reluctant to take any further steps to harm him. On 25 April 2020, he left Pakistan for Mainland China and then sneaked into Hong Kong.

The finding of the Board

5.  The Board considered the Applicant’s account consistent and plausible and assessed his claim on that basis. However, it did not accept that the Applicant would face a real risk of being subjected to proscribed harm upon his return to Pakistan. This is primarily because of the Applicant’s evidence at the hearing that his uncle had only ever threatened him or his father on a single occasion and had only ever attacked either one of them also on a single occasion. But for that assault, his uncle had never before or after used force to assert his interest in the disputed land. On the basis of the Applicant’s evidence of the uncle’s past behaviour, the Board found the uncle could not be considered as a violent person. The Board did not consider the uncle had real intention to kill the Applicant. It also found on the basis of the Applicant’s evidence that there is nothing to indicate that his uncle had ever sought to use his connection with Khan to harm the Applicant in anyway.

6.  The Board found on the basis of authoritative and credible country of origin information (“COI”) that Pakistan is willing and able to provide effective protection to persons who fear this kind of harm. Hence, adequate state protection would be available to the Applicant on his return to Pakistan. It also found internal relocation feasible to avoid any risk of harm from the Applicant’s uncle and it would not be unduly harsh or unreasonable for him to relocate to other cities. Indeed, the Applicant had moved to Mardan where he stayed for almost a year with his maternal uncle, his whole family is now living in Mardan. He is familiar with the language, society and geography of Mardan. The Board did not consider he would face a real risk of suffering any proscribed harm should he return to Pakistan in the reasonably foreseeable future. Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

7.  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[6].

Grounds for judicial review

8.  At the hearing, after the legal principles in the preceding section were explained to him, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality. However, he had annexed a two page document titled ‘Grounds on which Relief is sought’. He said the grounds were prepared by himself and he could provide particulars. The document contained sixteen paragraphs. The first seven paragraphs are about procedural background, while the last paragraph is a prayer for relief. The other eight paragraphs raised the following grounds.

9.  Paragraph 8:  The Applicant believes the Decision is not reasonable and fair as required by the Wednesbury test. When asked for particulars, the Applicant said he could not answer.

10.  Paragraph 9:  The Applicant submitted that the right to life is protected under article 28 of the Basic Law and article 2 of the Bill of Rights and a person must be protected from extra-judicial killing. These are statements of undisputed human right principles, but contain no pleading of how the Decision offended these principles.

11.  Paragraph 10: The Applicant complained that the Director failed to appreciate the importance of state acquiescence which resulted in his rejecting the Applicant’s claim. This ground is directed at the Director. The Court assumed in favour of the Applicant that this ground is directed at the Board. When asked for particulars of the ‘state acquiescence’, he submitted that the uncle colluded with the authority, but admitted that he had no evidence. In paragraph 55 of the Decision, the Board had considered evidence which might possibly constitute ‘state acquiescence’. It found on the basis of the Applicant’s own evidence that there is nothing to indicate that his uncle had ever sought to use his connection with Khan, a former member of the Provisional Assembly and his uncle’s close friend to harm the Applicant in anyway. The Board found, as admitted by the Applicant, there was no such evidence.

12.  Paragraph 11: The Applicant complained that the Board acted unreasonably and procedurally unfairly by placing too much weight on COI, but failed to take the Applicant’s personal background and experience into account. He could not identify the COI which he complained the Board had given too much weight to. The weight to be given to any COI is a finding of fact for the Board. Indeed, paragraphs 49 and 50 demonstrate that it was on the basis of the COI that the Board accepted the importance of the stamp paper to give credibility to the Applicant’s account. The Applicant could not identify what material personal background the Board had failed to consider.

13.  Paragraph 12: The Applicant complained that the Board failed to take ‘such argument’ into account or give enough weight to ‘such argument’. In answer to the Court’s request for particulars, he said that ‘such argument’ refer to the fact that his life is in danger. Whether his life is in danger is a finding of fact for the Board which is not to be conclusively presumed on the basic of his evidence or assertion. This ground is in effect a challenge of the Board’s finding of fact, which is impermissible.

14.  Paragraph 13: The Applicant complained that the Board acted improperly and unfairly when assessing whether to accept his explanation by requiring him to respond to questions. When asked for particulars, the Applicant said he could not recall. He could not provide particulars of the circumstances and the questions which he was required by the Board to respond. In fact, it is the Applicant’s burden to prove his claim and his duty to answer the Board’s questions to enable the Board to discharge its duty of joint endeavour in establishing the Applicant’s claim.

15.  Paragraph 14: The Applicant complained that the Board failed to take into the nexus of political parties and official corruption which exists in Pakistan which makes persecution effectively persecution by the state. In answer to the Court’s request for particulars, the Applicant answered that the uncle could ask the police to do anything. The Applicant had not adduced any such evidence in his claim or at the oral hearing before the Board. As already mentioned in paragraph 11, the Board could not even find any evidence that the uncle had used his connection with Khan to harm the Applicant.

16.  Paragraph 15: The Applicant complained that on the evidence the Board should have allowed the appeal instead of dismissing it. This is the Decision of the Board which this Court will rigorously examine with anxious scrutiny.

17.  There is no substance in any of these grounds, save that the Court shall scrutinise the Board’s Decision for errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

19.  The Board analysed the evidence carefully, tested it against common sense, the COI and inherent probability. It did not accept that the Applicant would face any real risk of being subjected to proscribed harm upon his return to Pakistan. Except for that, it accepted the Applicant’s account almost entirely. Applying the law applicable to non-refoulement protection to the facts it found, it came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. It gave reasons for its finding. Its findings are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

20.  For the above reasons, the Applicant’s leave application is refused.

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