IQBAL ZAFAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 863/2022

[2026] HKCFI 3363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 863 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 August 2022 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 25 July 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

Background

2.  The Applicant is a Pakistani national, now aged 53. He was arrested by the police on 16 October 2015 suspected of being an illegal immigrant and referred to the Immigration Department. He claimed to have departed from Pakistan for Mainland China on 2 October 2015 and sneaked into Hong Kong on 15 October 2015. He lodged a non-refoulement claim. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims, if returned to Pakistan, he will be harmed or killed by his neighbours, Imran, Irfan and their associates and the Sunni Sect for his conversion from being a Sunni Muslim to a Shia Muslim.

4.  The Applicant’s claim as set out in his non-refoulement claim form (“NCF”) is as follows. He was born a Sunni and all his family members belong to the Sunni Sect. Except for a few Shias, all the people in his home town are of Sunni Sect. He became a Shia Muslim in about 2008. In 2013, Imran and Irfan came to him and threatened him to leave the Shia Sect and to revert back to the Sunni Sect (the “2013 threat”). When he refused, they threatened him with death. Nothing happened for ten months.

5.  Towards the end of 2014, Imran, Irfan and another intercepted the Applicant while he was on his way to the city. They said they had warned him to revert back to Sunni but he did not listen. Then they assaulted him with fists for about ten minutes until some passers-by stopped the fight and separated them (the “2014 attack”). As they left, they warned that they will kill him next time if he did not revert back to Sunni.  The Applicant attempted to make a report to the police station, but the officer did not make a First Information Report (“FIR”) for him. He thought the police were corrupt and would not help him without being paid a fine. He did not complain to the Ombudsman as he thought the Ombudsman was also corrupt.

6.  In February 2015, the Applicant went to Tanzania hoping he could start a new life there. After staying for 19 days, he realized that Tanzania was not a safe place to stay. He returned to Pakistan to stay with his friend in Rawalpindi City for seven months. He did not consider he could relocate to other cities in Pakistan because Sunnis are dominant in Pakistan. He left Pakistan on 2 October 2015 for Mainland China and then sneaked into Hong Kong.

The finding of the Board

7.  The Applicant testified before the Board. The Board noted that he had lived in his home town for five years without problem from his neighbours, that he was not the only Shia living there and that he was not particularly enthusiastic in religious activities. The Applicant knew nothing about Imrana and Irfan. It follows that Imrana and Irfan would not have any sufficiently close relations with him as would cause them to bring about his reversion to Sunni. The Board could not accept his account of the 2013 threat.

8.  The Board also had doubts in the veracity of his evidence about the 2014 attack because despite the Applicant was outnumbered and the attacked lasted for ten minutes, he was not seriously injured. It also doubted the Applicant’s claim that passers-by had intervened because on his evidence his assailants were rich, powerful and influential people. The Board could not accept his evidence about the 2014 attack. It could not accept that the Applicant left Pakistan in order to save his life. It could not accept that after knowing the Applicant is now in Hong Kong, his neighbours continuously troubled his family by threatening to harm or kill him if he should return to Pakistan.

9.  The Board noted there was no personal grudge between the Applicant and Imran or Irfan, they lived peacefully for five years as neighbours, and they only wanted the Applicant to revert to Sunni. It noted that even on his own evidence, nothing really serious had happened to the Applicant. The Applicant was not seriously injured in the 2014 attack. No weapon was used and nothing eventful happened thereafter. Nothing happened to him when he stayed at home before he went to Tanzania. Nothing happened to him and his family during his seven months’ stayed in Rawalpindi City before he came to Hong Kong. On the totality of his evidence, the Board found he had failed to prove that there is a real likelihood for the risks to materialise. The likelihood of the risk of any proscribed harm is assessed to be low.

10.  It found on the basis of authoritative and credible country of origin information (“COI”) that Pakistan is willing and able to provide effective protection to its citizens. Given his age, education and working experience, the Board found it would not be unduly harsh or unreasonable for him to relocate to other parts of Pakistan to avoid the risk of harm.

11.  Applying the law applicable to the non-refoulement protection under the USM to the Applicant’s claim as he asserted and to the further facts it found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.  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[6].

Grounds for judicial review

13.  At the hearing, after the legal principles in the preceding section were explained to him, the Applicant confirmed he had no complaints about errors of law and appreciated the procedural unfairness he had been accorded. On the question of irrationality, he said he understood that the Board’s finding of facts was against him, but he maintained that what he had told the Board was the truth. That is in fact a challenge of the Board’s finding of fact. It could not be a valid ground of application. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

15.  The Board analysed the evidence carefully, tested it against common sense, the COI and inherent probability. It did not accept the Applicant’s account about the 2013 threat, the 2014 attack and that he left Pakistan in order to save his life. Primarily, the Board rejected his evidence and found he had failed to prove the factual basis to support his claim for non-refoulement protection.

16.  However, the Board took a step further and found in the further and alternative that even on the basis of his account, the risk of harm is unlikely to materialise and that he could further mitigate or avoid the risk by seeking state protection and internal relocation.

17.  The Board’s primary finding as well as its alternative finding are mixed finding of law and of fact. Insofar as its finding of law is concerned, the Board is absolutely correct. Insofar as it is a finding of fact is concerned, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Board gave reasons for its finding. On the evidence, it was open to the Board to make the finding of fact as it did. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

18.  For the above reasons, the Applicant’s leave application is refused.

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