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

HCAL 1810/2020

[2025] HKCFI 5371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1810 of 2020

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.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 September 2020, the Applicant seeks 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 1 September 2020 (“the Board’s Decision”), which affirmed the Director of Immigration (“the Director)’s rejection of his non‑refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM) on 15 March 2018 (“the Director’s Decision”).

Background

2.  The Applicant’s personal background, together with the incidents alleged in support of his claim that he would be harmed or killed by his cousins because of a land dispute if returned to Pakistan were set out in detail in the Board’s Decision. The Board also recorded the relevant immigration and procedural history of this case as part of its determination. It is unnecessary to repeat those matters here, and for completeness reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion 

3.  Having carefully reviewed the Board’s Decision, I am not satisfied that the Applicant’s proposed judicial review is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). Accordingly, leave is refused. In reaching this conclusion, I have reminded myself of the enhanced standard of scrutiny required by law, given the seriousness of the issues at stake (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.  The Applicant has merely expressed disagreement with the Board’s Decision and has not advanced any substantive ground capable of demonstrating any error of law, irrationality, or procedural unfairness in the Board’s determination. The Board, by contrast, acted squarely within its remit, having thoroughly evaluated the relevant evidence against the governing legal principles before reaching its conclusion as follows.

5.  The Board noted the Applicant’s claim that, if refouled to Pakistan, he would be harmed or killed by his cousins, the sons of his paternal uncle, who were supporters of the Pakistan Muslim League (Nawaz) (PML(N)), arising from a land dispute he had with them. The Board directed that a hearing be conducted. The Applicant attended the hearing. However, the Applicant refused either to take an oath or to make an affirmation, stating that he “could not be sure that he would be telling the truth in all of his evidence”. He insisted that he would not make an affirmation and requested the Board to proceed with the hearing on the basis that he had already provided all the material he wished to rely upon.

6.  The procedure of the hearing was properly explained to the Applicant, and he confirmed through the interpreter that he understood it. He further affirmed the truth and correctness of the evidence contained in the Hearing Bundle before the Board. The Applicant was clearly informed that a negative inference might be drawn if he failed to affirm the truth of his evidence. He acknowledged this explanation, and the hearing continued on that basis.

7.  When considering the evidence, the Board rightly bore in mind the need to assess whether the material facts alleged in the Applicant’s account and his experiences were set out with sufficient detail and specificity. Both internal and external consistency were examined. The Board observed that where the Applicant made bare assertions without objective proof, the assessment turned on the internal credibility of his claim and its plausibility in light of the COI information then available. The existence of inconsistencies, exaggerations, or untruths in his account might not in itself be fatal; however, such deficiencies could be sufficiently serious to cast doubt upon the totality of the Applicant’s evidence. Ultimately, the burden of proof rested with the Applicant. The Board also noted the element of joint endeavor between the Applicant and the Board at the oral hearing.

8.  Against the above, the Board observed that the Applicant had refused to take an oath or make an affirmation for reasons known only to himself, thereby raising doubt as to whether he was prepared to confirm the truth of his evidence. He was afforded the opportunity to present further information and document to support his claim but did not do so, even though the Board formed the impression that he was courteous.

9.  The Board proceeded to assess the Applicant’s credibility and the consistency of his evidence on the basis of the material available, and made findings of fact. The Applicant’s claim rested on the alleged ability of his enemies to harm him because of their connection with PML(N), which he asserted was then the ruling party. However, according to the COI, PML(N) was in power between 2013 and August 2017. Since then, its leader was convicted of a criminal offence and forced to resign.

10.  The Board further highlighted a number of contradictions and inconsistencies in the Applicant’s claim. The ownership of two pieces of land was said to be central to his case, yet the circumstances of their acquisition were found to be contradictory. The dates given in his account of events were likewise inconsistent. The Board considered his assertion that his cousins were prepared to kill him over the land dispute, but noted that at the time of the 2018 interview, after the Applicant claimed to have fled, his father was still farming the land. The Applicant also failed to make any police report about the alleged attack, explaining that his father had advised him not to do so because of his enemies’ supposed strong connections with local leaders. The Board pointed out that there were many subsequent opportunities for him to lodge a report, but he did not do so. Nor was there any evidence that his enemies had the ability to locate him beyond the home area, or that their conduct was attributable to PML(N) in any event.   

11.  The Board found that the Applicant’s case that he faced a serious risk of harm from his enemies was not established. It did not accept that his enemies were in a position to cause any public official, or any person able to wield the authority of the State, to be interested in or involved with any attack or unlawful ill-treatment of the Applicant. There was no evidence that the State or its authorities had perpetrated, acquiesced in, or otherwise been complicit in any such conduct. Nor was there evidence that the Applicant had suffered physical or mental harm of the requisite severity, or that he would face any real risk of serious harm in the future. The COI indicated that state protection was available to him. The Board therefore held that his claim must fail. The Applicant, being an able-bodied man with previous work experience, was also found capable of relocating to another part of Pakistan.

12.  In the absence of any valid public law grounds being established by the Applicant against the Board’s determination, the Court should not interfere with the Board in its capacity as the primary decision-maker. Judicial review is not intended to serve as an additional avenue of appeal for the Applicant (see 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; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

Conclusion

13.  In light of the foregoing, 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