ABID HUSNAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 957/2024

[2025] HKCFI 6206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 957 of 2024

   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 the Applicant’s submissions in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 19 June 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 13 June 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 March 2024 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Pakistani national.  His personal background, the factual background leading to the present application, 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.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed, if returned to Pakistan, by two named members of the Pakistan Muslim League (Nawaz) (“PMLN”) because he is a member and supporter of the Pakistan Tehreek-e-Insaf (“PTI”) and refused to join PMLN.

3.  The Applicant’s case is that he is a member and supporter of the PTI.  At the time, PMLN was the political party in power.  On 9 May 2023, a PTI leader was arrested.  On the same day, the two PMLN members intercepted him while he was working on his farm.  They told him to leave the PTI and join the PMLN.  When he refused, one of them hit him with the back of an axe.  They threatened to kill him if he did not accede to their request.  On 10 May 2023, the Applicant made a report at the Mirpur Police Station.  The officer refused to file the report when he mentioned the names of the two PMLN members and told him to leave.

4.  Since mid-May 2023, the two PMLN members stationed their subordinates at his family’s farm and prevented all his family members from entering the farm.  In September 2023, the two PMLN members insisted that he should leave PTI immediately and join PMLN and threatened to kill him if he did not.  Then, the Applicant left Pakistan and arrived mainland China on 12 October 2023.  From there he sneaked into Hong Kong.

The Board’s finding

5.  The Applicant’s claim was based solely on his own words.  He had no position in the PTI and had no personal grudge with PMLN members in home village or in any other parts of Pakistan.  The Board doubted that the two PMLN members would want to threaten and attack him on 9 May 2023 just because on that day a PTI leader was arrested.  The Board considered his evidence unreliable and questionable.  It was not satisfied even to the low standard required that there was a genuine threat of harm against the Applicant in Pakistan and that he had been assaulted and threatened by the two PMLN. It could not find any real chance that the Applicant will be harmed or otherwise ill-treated by them on his return to Pakistan. 

6.  Despite that finding of credibility, the Board proceeded to assess his claim on the basis of the factual case as he asserted.  In the absence of evidence that the two PMLN members were state agents, it found they were acting in their private and personal capacity in their assault and harassment of the Applicant.    

7.  The Applicant only had two encounters with the two PMLN members. They hit him with the back of an axe on one occasion and verbally threatened him on another.  The Board found the ill-treatment he suffered did not attain a minimum level of severity and that the two PMLN members had no intention to seriously harm or kill him.

8.  Though the Applicant was not given assistance in the Mirpur Police Station, he did not seek to enforce his right to protection from the National Accountability Bureau (“NAB”) or the Ombudsman.  That was because of his own belief that it would be useless because the PMLN was in power. However, the country of origin information shows that there are a structured police force in Pakistan and ongoing reforms showing that the Pakistani government has taken practical steps to protect the rights of its citizens and to improve the effectiveness of its police force.  He could have secured police protection by seeking assistance from the NAB or the ombudsman.  

9.  On the basis of the COI, the Board found given the geographical size and the population of Pakistan, the Applicant’s age, education and working experience, it would not be unduly harsh for him to relocate internally to a place of his choice in Pakistan.  It found there were no reasons for the two PMLN members to want to go after him after he had left his home village and no evidence to indicate that they had the means or would be able to use the PMLN or government resources to locate him outside his home village. 

10.  Applying the law applicable to non-refoulement protection, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

11.  The Applicant did not advanced any grounds of judicial review in his Form 86.  In his supporting affirmation, he said he disagreed with the Decision and repeated the danger he would face on his return to Pakistan.  This is a direct challenge of the Board’s finding of fact that it was safe for him to return to Pakistan, which is impermissible in an application for judicial review.  At the hearing, after the legal principles applicable to judicial review had been explained to him, he confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements for him.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these vitiating elements in its anxious scrutiny of the Decision.

Overall scrutiny

12.  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.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found the Applicant unreliable and his evidence questionable.  Nevertheless, it assessed his claim on the basis of the factual case as he asserted.  Even on that basis, the Board found he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 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

13.  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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000957_2024_files/the_Board's_Decision.pdf