SANAULLAH KHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3418/2019

[2025] HKCFI 4429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3418 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 13 September 2019”.

2.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 13 September 2019 without identifying the decision maker.

2.  The decision of the Torture Claims Appeal Board (“the Board”) dated 13 September 2019 (“the Board’s Decision”) was annexed to the applicant’s supporting affirmation dated 13 November 2019.  Hence, it is clear that the applicant was referring to the Board’s Decision in the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003418_2019_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 20 June 2017 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

4.  Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed.  The applicant made a CAT claim[5] previously and the claim was refused by the Director on 22 November 2011.  The applicant’s petition to the Chief Executive was rejected.

5.  Thus, the applicant’s Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

6.  In Form 86, the applicant wrongly named himself as the putative respondent without naming any putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party. 

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

8.  As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision, and it is so amended on this court’s own motion.

The applicant’s case

9.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

10.  In sum, the applicant claimed for non-refoulement protection because if returned to Pakistan, he feared harm from the Muhajir Quama Movement (“MQM”) as he was a supporter of the opposition party Pakistan Muslim League (“PML”).  In 1991, he was falsely accused of shooting an MQM member and was arrested and tortured by the police who wanted him to admit that he had shot the MQM member. In 1992, he was arrested by the Criminal Investigation Agency (“CIA”) because of MQM’s false accusations.  He was arrested again by the police in 1993, 1994 and 1998.  The police conducted 3 raids on the applicant’s home in February and April 2000 to look for him.  The applicant eventually fled from Pakistan to China in August 2000 before he entered Hong Kong in September 2000.

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 July 2025.

12.  At the hearing, when this court asked the applicant to elaborate on the grounds for his intended judicial review as he had written something in his supporting affirmation, the applicant merely said that his brother and father were murdered and he could not go back to Pakistan.

13.  The applicant, however, asked this court to re-open and reconsider his case in HCAL 100/2002, which concerned the applicant’s judicial review in respect of the Director’s decisions made on or about 14 February 2002 and 12 March 2002 respectively.  The applicant’s application for judicial review in that case was dismissed by Chow J (as he then was) on 18 September 2018.  It has nothing to do with the Leave Application, which concerns the Board’s Decision made in 2019.  In any event, it is not for this court to deal with the applicant’s application for re-opening of that case and hence this court will not deal with such a request.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  In the 8-page written document attached to his supporting affirmation, the applicant asserted some grounds for his intended judicial review, which are summarized as follows:-

(1)     He could not return to Pakistan after being in Hong Kong since 2000, as the Pakistani government would arrest him at the airport and put him in jail for life.

(2)     It is not safe for him to return to his home country because the government, police, politicians and political parties are all corrupt.  The MQM is not a peaceful party.  It creates violence, uses illegal weapons, tortures and kills innocent people.

(3)     Pakistani news media showed that two people deported from Hong Kong were arrested at the airport.  One asylum seeker who was also deported from Hong Kong was shot and killed.

(4)     Because of his complaints, his father and brother were killed and horrible things happened to his family in Pakistan.

(5)     He has a wife, a daughter and a son in Hong Kong, and he would not put his family’s lives in danger.

(6)     He was used in Hong Kong by his lawyer Mr Mark Daly who did not tell him about a High Court settlement in 2002 for him to resettle in Canada, US, Sweden, Norway and the Netherlands.

(7)     His Legal Aid certificates were closed and he asked this court to “open” one of his Legal Aid certificates.

Discussion

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

17.  All the information as outlined in the 8-page written document attached to the applicant’s affirmation, except point (5) summarised in paragraph 15 above, had in fact been asserted by the applicant before the Board (see paragraph 51 (a)-(f) of the Board’s Decision). The Board had made findings on all the allegations, which would be discussed in the ensuing paragraphs.

18.  This court will also scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

19.  The applicant filed his Notice of Appeal/Petition to the Board late by 16 months.  Nevertheless, the Board was satisfied that it would be unjust not to allow the late filing of his Notice of Appeal/Petition.  The applicant’s petition was combined with the appeal/petition of his wife and daughter, who were also challenging the Director’s decision in rejecting their non-refoulement claims.  The applicant’s son, who was born in 2019 when the Board’s Decision was made, was not a party to either the applicant or his wife and daughter’s appeal/petition.

20.  In assessing the applicant’s petition, the Board held an oral hearing on 7 May 2019 and the applicant was present.  At the hearing, the Board explained to the applicant about its role, the purpose of the hearing and the criteria that it had to apply.  The Board also made it clear to the applicant that it had several questions about his claims and that his unwillingness to answer such questions might lead the Board to make adverse findings about the credibility of his evidence.  Nevertheless, the applicant repeatedly stated that, while he respected the Board, he was not going to answer questions posed to him about his claims.

21.  After due consideration of the law and all the available evidence, the Board accepted that the applicant became affiliated with PML in approximately 1990 and that he became a member/worker of the party in approximately 1992.  However, while the Board was willing to accept that the applicant might have been referred to as an “executive worker” after a few years, the Board did not accept that he would have had a high profile or level of prominence within the party in light of his activities and very young age at the time of his involvement.  The applicant’s involvement in PML actually decreased in 1998 and especially after the arrest of Prime Minister Nawaz Sharif in 1999.

22.  The Board found the applicant’s allegations of serious abuses while in the custody of Pakistani authorities appeared consistent with country of origin information (“COI”) indicating that ill-treatment including torture of prisoners and detainees in police custody were frequently reported in Karachi.  Two medical reports of the applicant both stated that the applicant’s scars and injuries were consistent with his description of how they were obtained.  The Board did give due weight to these reports.

23.  Thus, the Board was prepared to accept that the applicant’s evidence regarding past incidents and harm suffered while he was present in Pakistan up until August 2000 and as set out in his claims was credible.  However, the Board found other aspects of the applicant’s evidence regarding events subsequent to his departure from Pakistan lack reliability and credibility.  The Board found the applicant’s claim that people whom he believed to be plainclothes CIA officers attended his sister’s wedding at the end of 2005 looking for him far-fetched.  The applicant’s evidence did not indicate that he was of any on-going interest to the police, other authorities or MQM after 2001.

24.  As to the death of the applicant’s father and brother, the Board had given detailed reasons why it rejected that their death in 2009 and 2018 respectively were related to the applicant’s profile or past political problems in Pakistan.

25.  The Board discussed with the applicant his future risk of harm due to his political opinion upon his return to Pakistan.  The Board found from reliable COI that while politically motivated violence occurred in Pakistan, the evidence before it did not suggest that ordinary members or supporters of PML or PML-N (the successor to PML), or those who had supported the party in the past, faced a real risk of any forms of serious harm from either the Pakistani authorities or other rival political parties.

26.  Concerning the applicant’s claims about MQM and the threats it posed, COI showed that while politically motivated violence tended to be most prevalent in Karachi, the levels of such violence, and violence in general, had greatly reduced following the commencement of operations by paramilitary Rangers in 2013 and Pakistani Army operations in 2014.  MQM claimed to have been disproportionately targeted by the Rangers.  Credible reports indicated that while MQM remained a political force in Sindh, its influence had decreased following the military and paramilitary crackdown and leadership fractions in 2016.  COI did not indicate that members/supporters of PML or PML-N were particularly targeted by MQM.  Further, the majority of the evidence before the Board strongly indicated that the level of violence in Karachi, both political and otherwise, had greatly reduced from levels prevalent in the 1990s.

27.  Significantly, the Board noted that almost two decades had passed since the applicant’s departure from Pakistan.  The situation in Karachi was not the same as it was prior to the applicant’s departure.  The applicant was able to depart from Pakistan on his valid passport without issue.  There was no evidence to suggest that he had continued to be of any adverse interest to the police in the lengthy period of time since then.  Specifically, there was no credible evidence to indicate that the applicant was wanted by the Pakistani authorities or that there were any active arrest warrants or First Information Reports against him.  Together with its finding of the applicant’s lack of any ongoing political profile and the COI before the Board, the Board found the risk of the applicant facing further serious forms of harm at the hands of police or other Pakistani authorities in the reasonably foreseeable future to be remote and speculative.

28.  The Board also addressed the applicant’s concerns about being arrested at the airport upon his return to Pakistan.  The Board found from reliable COI that officials generally questioned returnees in order to ascertain whether they left Pakistan illegally or whether they were wanted for any offences in Pakistan or abroad.  Those who left Pakistan on valid travel documents and who had not committed crimes were typically released within a couple of hours, although there had been reports of some returnees being held in Karachi airport for several hours without reason.  The Board found that the applicant might likely come to the attention of the Pakistani authorities upon arrival and would be taken for questioning to ascertain his method of departure from Pakistan and whether he was wanted for any outstanding offences.  The applicant had consistently stated that he left Pakistan on his then valid travel document.  There was no evidence to suggest that he had committed or was wanted for crimes in Pakistan or abroad.  Thus, the Board found that the risk the applicant would be detained for longer than the few hours that his questioning might take was remote, even taking into account his past profile and incidents prior to his departure from Pakistan.  The Board was not satisfied that on the evidence before it that there was a real risk of the applicant facing any serious forms of harm or torture during any such routine questioning at the airport.

29.  The Board assessed the applicant’s claims that two Pakistani asylum seekers returned from Hong Kong were arrested at the airport.  Despite claiming to have news media about these cases, the applicant had provided no evidence to corroborate that.  The Board was unable to ascertain the circumstances of any such arrests, if they even occurred.  Further, COI suggested that there might be legitimate reasons why returnees were arrested in Pakistan, but the applicant’s circumstances were not such that there was a reasonable likelihood of these reasons arising.  The Board thus gave little weight to the claimed arrest of two Pakistani deportees in its assessment of the future risk faced by the applicant.

30.  Regarding the applicant’s claim about the death of a Pakistani returnee from Hong Kong, though the applicant claimed to have news videos in relation to the incident and that he intended to show the Board, he had provided no such evidence.  In the absence of any evidence regarding the circumstances of that individual and the reasons for his alleged death as well as the lack of COI suggesting that returned asylum seekers were targeted due to having sought asylum, the Board gave little weight to the applicant’s evidence on the matter.

31.  The Board also located the judgment in relation to the applicant dated 18 September 2018[6], which indicated that the applicant made an application for judicial review in March 2002 to challenge the Director’s decisions to make and execute a removal order against him.  The Court of First instance discharged the interim intervention order against the removal order against the applicant and dismissed the applicant’s application for judicial review on the ground that the issues were academic.  The Board had repeatedly advised the applicant that the Board could do nothing about that judicial decision.

32.  Having assessed all the claims by the applicant with due care, the Board’s findings as illustrated above supported its conclusion that the applicant had no real risk of any of the proscribed forms of harm on any of the applicable grounds under the USM, and thus the applicant was not entitled to non-refoulement protection.

33.  It is thus clear that point (1) to (4) of the applicant’s grounds have been considered and rejected by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

34.  Point (5) of his grounds for the intended judicial review, namely that he has a wife, a daughter and a son in Hong Kong is irrelevant.  Family union is not a ground to claim non-refoulement protection in Hong Kong.  His claimed dangers had indeed been assessed in full by the Board.  If the applicant intends to challenge the finding of facts by the Board, it is not permissible in an application for judicial review. 

35.  Points (6) and (7) are apparently related to the applicant’s previous application for judicial review that had been dismissed.  The Board had carefully analyzed the applicant’s claims and correctly pointed out to the applicant that the Board could do nothing about that judicial decision.

36.  As aforesaid, the finding of facts relating to a non-refoulement claim is solely within the ambit of the Director and the Board.  This court finds no reason to usurp the fact-finding power vested in the Director and the Board when there are no errors of law, procedural unfairness or irrationality involved.

37.  For the sake of completeness, this court noticed that the adjudicator, Ms Magdalena Wysocka, signed the Board’s Decision as “Adjudicator of the Non-Refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of her capacity, as she was not making the determination on behalf of the Non-refoulement Claims Petition Office.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

38.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

39.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms Wysocka was indeed a member of the Board and did have the power to determine the applicant’s petition.

40.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

41.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

42.  For reasons aforesaid, the Leave Application is 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