HAYAT FAKHAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1816/2020

[2025] HKCFI 5372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1816 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 only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 14 September 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of (i) the Director of Immigration (“the Director)’s decision dated 29 November 2018 (“the Director’s Decision”); and (ii) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 3 September 2020 (“the Board’s Decision”).  The Board affirmed the Director’s rejection of the Applicant’s claim for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (USM).         

Background

2.  The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by his girlfriend’s family owing to their intimate relationship if returned to Pakistan, together with the relevant immigration and procedural history, were set out comprehensively in the Board’s Decision.  It is unnecessary to repeat them, and for completeness  reference may be made to that Decision, the hyperlink to which is included below[1].  Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  First, the Director’s Decision is not one that is amenable to judicial review (see Re Moshsin Ali [2018] HKCA 549 at §45). 

4.  As for the Board’s Decision, for the reasons set out below, I am not satisfied that the Applicant’s proposed application for judicial review of it is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  I have therefore refused leave.

5.  The Board, acting in its capacity as the primary decision-maker, evaluated the evidence, assessed the risk of harm, considered the COI information together with the availability of state protection, and examined the viability of internal relocation before making determinations within its jurisdiction as follows:

(1)  The Board was aware of the basis of the Applicant’s claim, namely, that he had difficulties with the family of a girl with whom he had a relationship in Pakistan, as she became pregnant.  He asserted that her family had threatened to kill him and would do so if he were returned to Pakistan.  He further alleged that her family had connections with a political party, such that they would be able to locate him wherever he might go within Pakistan.  The Board took these assertions into account in its evaluation before reaching its determinations.    

(2)  The Board found that the Applicant’s evidence at the hearing concerning his alleged relationship with the girl was “extremely vague” and differed materially from his earlier claims on important aspects of his case.  The Board noted that the Applicant had given inconsistent evidence about other elements of his claim at various times since he first raised it in 2016.  His evidence regarding the timing of his departure from his village and his departure from Pakistan was also “extremely vague and inconsistent”.

(3)  In light of these deficiencies, the Board was not satisfied that the Applicant’s assertions concerning his relationship with the girl, her pregnancy, and her family’s alleged threats towards him were credible, finding that these matters were either “exaggerated”, “untrue”, or wholly “lacking in reliability”.  The Board was further satisfied that the Applicant’s vague assertions about her family being connected with the political party, which were omitted from his evidence at the hearing, were without credibility.

(4)  As the Board did not accept the Applicant’s claim that he would be at risk of harm at the hands of the girl’s family should he return to Pakistan, it found that there were no substantial grounds for concluding that there was a real risk that the Applicant would suffer persecution within the meaning prescribed by law upon return. Accordingly, the Board determined that the Applicant had failed to demonstrate a genuine and substantial risk of being subjected to the ill-treatment alleged if expelled from Hong Kong.

(5)  The Board also did not accept the Applicant’s claim that he faced a real risk that his right to life would be violated by the girl’s family upon return.  The Board further found that the Applicant had not established any basis for concluding that there was a real risk that he would suffer severe physical or mental pain amounting to CIDTP should he be expelled from Hong Kong.

(6)  The Board was satisfied that the Applicant had not shown substantial grounds for concluding that there was a real risk of torture.  The Board also observed that the Applicant had not sought to advance a claim that he would be subjected to torture by reason of the general security situation in Pakistan.   

6.  It is plain that none of the grounds advanced by the Applicant in Form 86 discloses any reasonably arguable basis for judicial review.  I have reminded myself, given the seriousness of the issues involved, of the need to apply the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524at §14):

(1)  The allegation that the Board failed to make “sufficient enquiries” before finalizing its determinations is wholly without merit.  As set out in the analysis above, the evidence was thoroughly examined by the Board, on the basis of the materials available and with due application of the relevant legal principles.  At no stage has the Applicant identified any specific enquiry that he claims was omitted, whether in Form 86 or during the course of these proceedings.

(2)  Regarding the Applicant’s contention that, as a torture claimant, he had “limited options” at his disposal, such status, however, does not relieve him of the obligation to properly substantiate his claim.  His failure to discharge that obligation cannot be excused by reliance on his torture claimant status.  In any event, the Board recorded that the Applicant had confirmed all of the claims he had made orally and in writing to the Immigration Department were true, and that he did not wish to alter or correct anything in his statement or in his answers provided to the Immigration Department.

(3)  Equally, the assertion that the Board failed to afford him “sufficient chance” to arrange and present relevant evidence is without foundation.  As noted above, the Applicant had already confirmed his claims without seeking correction or requesting time to adduce further evidence.  He was afforded a full opportunity to advance his case, and all relevant materials were before the Board.   Moreover, he has not identified any evidence that was not before the Board even at this stage when Form 86 has been filed for leave to apply for judicial review.

7.  In the absence of any reasonably arguable basis to impugn the legality, rationality, or procedural fairness of the Board’s Decision, there is no justification for the Court to interfere with the Board’s adjudicative function (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

8.  Accordingly, I order that the Leave Application be dismissed, rather than allowing it to be withdrawn as requested by the Applicant.

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