BAIG ASHFAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 230/2020

[2025] HKCFI 2068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 230 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 herein be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 21 January 2020, the Applicant applies for 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 8 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 16 November 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed by his cousin in Pakistan owing to a land dispute, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, 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.  In view of the seriousness of the issues involved, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I am satisfied that the Board correctly set out the burden and standard of proof, the law and key legal principles; assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc.; and observed a very high standard of fairness.

4.  After reviewing all the evidence and documents available, including those produced by the Applicant, the Board was not satisfied that he was a credible witness at all. It was observed that his various accounts of the shooting incident, which was by far the most serious of all the incidents alleged by him, was “riddled with inconsistencies and contradictions”:

(1)  In the NCF, the Applicant alleged that there were three confrontations with Arshad and his associates.

(2)  The first incident occurred in 2014, when the Applicant, his wife and his sister Kaneez visited the disputed land. A dispute ensued during which Kaneez was struck by a wooden stick.

(3)  The second incident was the alleged attack at the Applicant’s home, which was by far the most serious: Arshad opened fire at the main door and a lady was shot and died. Arshad and his men then fled and made a false report to the police, accusing the Applicant of being the attacker.

(4)  The third incident occurred in mid-2015, when the Applicant was allegedly spotted in his home village. He was allegedly attacked, resulting in injuries to him.

(5)  In the Interview, the Applicant said that the lady who was shot was his wife’s aunt. He also said that at the time of the attack, he was inside his room at home. Despite the very serious nature of the allegation made, there was no indication that the police ever sought him out regarding the matter.

(6)  However, when asked about this incident at the Hearing, the Applicant simply made no mention of anyone being shot, stating instead that he was not present at home at the time of the incident.

(7)  The Applicant also only mentioned, for the very first time at the Hearing, that the shooting incident was reported to the police by his sister.

5.  Consequently, the Board was not satisfied that the Applicant had established a case regarding the applicable grounds:

(1)  The Applicant failed to provide any credible evidence to establish that he had a well-founded fear that he would be subject to persecution, and for a Convention reason.

(2)  The Applicant did not provide any reliable evidence that there were substantial grounds for believing that he would face a genuine and substantial risk of severe ill-treatment.

(3)  There were no substantial grounds for believing that the Applicant would be liable to torture.

(4)  There was no credible evidence that the Applicant’s rights under BOR 2 would be violated.

6.  The Applicant has not demonstrated any error of law, nor has he shown any procedural unfairness or irrationality in the Board’s decision-making process. He has not identified any valid or justifiable grounds for judicial review.

7.  First of all, regarding the Applicant’s complaint about the Director’s Decision, it is well-established that the decision of an immigration officer is not subject to judicial review within the administrative structure, once the appeal to the Board is pursued (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.).

8.  Turning to the Applicant’s complaint about the Board’s Decision, I am unable to accept that the Board failed to make sufficient enquiries beforehand. Quite the contrary, at the Hearing, the Board explained the procedure to the Applicant, including that he could supplement or amend the information in his NCF and during the Interview. He was also reminded of the basis of his claim for non-refoulement. However, when being asked if he had anything further to add, he did not do so to the Board’s satisfaction.

9.  The Board was of the view that the Applicant failed to provide adequate credible evidence for the material elements of his claim. It is important to note that the burden of proof rested on him to substantiate his claim. This remains the case for torture claim applicants as well. It is then primarily within the province of the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc.

10.  In the absence of errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see 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, etc.).

11.  Taking all these into account, I am not convinced that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and have therefore refused leave.

Conclusion

12.  I accordingly make an order that Form 86 be amended as described above and the Leave Application be 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