HASSAN ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 34/2021

[2025] HKCFI 5028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 34 OF 2021

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 the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 September 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.   The Applicant is a 30-year-old national of Pakistan who entered Hong Kong illegally on 2 August 2019 and surrendered to the Immigration Department on 28 October 2019 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political parties Pakistan Muslim League (Q) (“PML(Q)”) and/or Pakistan Tehreek‑e‑Insaf (“PTI”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Jalalpur Jattan Tehsil, District Gujrat, Punjab, Pakistan where he joined the student wing of PML(N) while at school, during which he was often invited by student members of PML(Q) or PTI to join their parties, but he always declined despite being threatened, harassed and even assaulted by those rival students members all the time, and after leaving school he continued to support PML(N) regularly attended their local meetings and activities without holding any official post in the party.

3.  However, as the threats and harassments from those local supporters of PML(Q) and PTI had persisted, and in one such incident in 2019 that the Applicant was attacked by some gangsters associated with PTI with choppers and iron rods that he suffered injuries all over his body that he was subsequently hospitalized for more than a month. 

4.  Upon his discharge from hospital, the Applicant felt it was no longer safe to remain in Pakistan, and so on 23 June 2019 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  By a Notice of Decision dated 26 March 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local supporters of PML(Q) or PTI upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or to have any adverse interest in him or to specifically target him given that he was just an ordinary PML(N) supporter without any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 233 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Faisalabad where it would be difficult if not impossible for anyone to locate him.

7.  On 7 April 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 19 June 2020 and 10 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of being a PML(N) supporter and was involved in its student wing whilst at school but found no reliable evidence that he had ever experienced harm or ill-treatments at the hands of any members of PML(Q) or PTI or their gangsters associated with them or any political reason for them to have any adverse interests in him or to specifically target him given that he was just an ordinary PML(N) supporter without any official post in the party that it is not satisfied that he would face any appreciable or real risk of proscribed harm upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 8 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation.  

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 14 December 2020, the Applicant was therefore more than 3 weeks late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 3 weeks must be considered as substantial or significant, for which he did not provide any explanation or reasons in his Form or affirmation. In the circumstances I am unable to see any good or valid reason for his serious delay.  

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he attend the scheduled hearing of his application without any explanation. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his significant delay, I refuse to extend time and accordingly dismiss his leave application.

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