HUSSAIN NARAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 902/2020

[2025] HKCFI 5305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 902 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 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 refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 14 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office’s decision dated 20 April 2020 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 11 December 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s personal background and the circumstances of his case were set out in the Board’s Decision.  He claimed that he would be subjected to ill-treatment by his cousins in Pakistan upon return, owing to his refusal to sell them his land.  For completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  After carefully considering the Applicant’s evidence and submissions, the Board considered that there were serious credibility concerns such that it was not appropriate to attach any weight to the Applicant’s account below:

(1)  The Applicant stated that around 2012, his father transferred a plot of land to him.  In late 2014 or earlier 2015, his cousins went to his family home and offered to buy the land.  He refused.  He claimed that one of the cousins slapped him once or twice and showed him a pistol in his pocket, warning that he would be killed if he continued to refuse.  The cousins then left.

(2)  Approximately two months later, the Applicant encountered the cousins by chance at a market.  He again refused to sell the land and was allegedly attacked by hand for about five minutes.  He was told that they would not spare him next time.  He then went to a clinic and lodged a complaint with the police, who recorded his statement and asked why he had refused to sell the land.

(3)  Afterwards, he returned home and informed his mother, who advised him to hide.  He stayed at Razaak’s house for two months.  He claimed that the cousins later returned with five other individuals, fired gunshots into the air, and shouted his name, demanding that he come out.  He escaped and subsequently stayed at Razaak’s house.

(4)  Shortly after arriving in Hong Kong, he alleged that one of the cousins threatened him via Facebook, saying he would kill him if he returned.

(5)  The cousins were occupying the land. 

4.  The Board was also doubtful that the cousins were affiliated with Pakistan Tehreek-e-Insaf.  On the basis of the above findings, the Board concluded as follows:

(1)  No acts of torture had been inflicted for purposes linked to the interests or policies of Pakistan or its organs.  There was no evidence that any ill-treatment was carried out at the instigation of, or with the consent or acquiescence of, a public official or any person acting in an public capacity.  The Board found no real risk that the Applicant would be subjected to torture upon return.  Accordingly, the Applicant did not qualify for non‑refoulement protection on the basis of Torture Risk.

(2)  The Applicant had not suffered any torture or CIDTP, nor was there any real risk of such treatment in the future.  The country was found to provide reasonable protection.  Accordingly, the Applicant did not qualify for non-refoulement protection on the basis of risk under BOR 3.

(3)  There was no real risk that the Applicant would experience persecution if he returned to his country.  He had not suffered any past persecution, and the government was willing and able to provide effective protection.  It was reasonably open to the Applicant to relocate to another part of the country where he could live without fear of the alleged harm and without facing undue hardship.  Accordingly, the Applicant did not qualify for non-refoulement protection on the basis of Persecution Risk.

(4)  Appropriate steps were in place to safeguard lives, and there was no real risk of a violation of the right to life.  Accordingly, the Applicant was not eligible for non‑refoulement protection on the basis of BOR2 Risk.

5.  The above matters were clearly within the primary province of the Board to assess.  The Applicant has not established any error of law, procedural unfairness, or irrationality in relation to those findings and decision (see Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (22 December 2016) at §142).  Having regard to the enhanced standard required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14), I also do not find that any such issues arise.

6.  In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal and should not intervene (see Re Zunariyah [2018] HKCA 14; 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 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

7.  For these reasons, the Applicant’s intended application for judicial review of the Board’s Decision is not reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  I make an order that 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