JAVED ZAKIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2376/2019

[2025] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2376 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 13 August 2019 (“the Board’s Decision”), which refused to re-open his appeal withdrawn.

2.  The applicant asked for a hearing. He appeared before the Court on 11 December 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 48, is a Pakistani. He entered Hong Kong illegally on 21 October 2009 and was arrested by the police on the same day. The applicant made a torture claim on 23 October 2009, but he applied to withdraw his claim on 1 December 2009. On 26 April 2010 and 1 May 2010, the applicant applied to reopen his torture claim, which was rejected on 11 January 2013. His subsequent appeal was also dismissed on 14 March 2013. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 4 October 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by a member from Pakistan Muslim League (Nawaz) (“PML(N)”) called Yaseen.

5.  According to the applicant, he was assigned to work at a polling station on the 2008 Election Day. During the counting of votes, a fight broke out between PML(N) members and Pakistan Muslim League (Quaid-e-Azam Group) (“PML(Q)”) members, in which the applicant and his family members were also beaten up. Shortly thereafter, the applicant started to receive threatening calls from PML(N) members. Subsequently, he and three of his cousins were even arrested by the police for assaulting PML(N) members. They were detained for around 5 months until his brother-in-law paid a bribe to the police.

6.  Upon his release, the applicant continued to receive threatening calls from Yaseen. There was also someone trying to break into his home during midnight. On one occasion, while the applicant was on his way to the hospital for follow-up treatment, his vehicle was attacked by PML(N) members including Yaseen and he was injured by the broken glasses of the vehicle windows. Thereafter, although the applicant relocated to different places in Pakistan, he still received threatening calls from PML(N) members. Worried about his safety, the applicant left Pakistan in September/October 2009 and eventually sneaked into Hong Kong from Mainland China on 21 October 2009.

7.  The applicant had maintained contact with his family since arriving in Hong Kong and he was informed that the situation had not improved. His father continued to receive threats from PML(N) members and his grocery was also burnt down. One of the applicant’s cousins was even killed.

8.  The applicant was of the view that he could not seek protection from the police because they were under the influence of PML(N), as evidenced from their inaction despite the various reports made to them. The applicant also considered internal relocation not viable because he was still tracked down after relocating, so that he believed that Yaseen could utilise the network of PML(N) to find him.

9.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 24 October 2018 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the injury suffered by the applicant failed to attain a minimum level of severity [21]; (ii) the matter between the applicant and Yaseen was merely a private dispute and it was unreasonable that the applicant would draw special attention from PML(N) members given that he was not a prominent figure from PML(Q) [22]; (iii) there was no evidence indicating state involvement in the matter [23]; (iv) there was no information suggesting that Yaseen had the means to locate the applicant nationwide in Pakistan [24]; (v) state protection would be available [25]-[30] and (vi) internal relocation would be viable [31]-[36].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 8 January 2019, he applied to withdraw his appeal and the Board therefore confirmed the Director’s Decision on 18 January 2019. On 12 August 2019, the applicant applied to reopen his case, but was rejected by the Board on 13 August 2019.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 on 16 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In her affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.  The question before the Court is whether the Board’s Decision is right, refusing to re-open his appeal, which he had withdrawn on 8 January 2019.

16.  Before me, the applicant confirmed that he submitted his withdrawal voluntarily without any influence from anybody else. The reason for him to withdraw his appeal is that at that time, his father was suffering from heart problem and he wanted to go back to his country to see him as soon as possible. However, by the time he was told to attend the immigration office to sign the removal order, his father had already passed away. That is why he changed his mind and preferred to stay in Hong Kong.

17.  Section ZTA of the Ordinance provides, inter alia:

“(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

18.  In Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

19.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.