RASHID QADEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 430/2020

[2025] HKCFI 2147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 430 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 the Applicant being absent in open court;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be granted.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 16 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 March 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 19 April 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1] , in respect of which claim the Director had rejected by a prior decision dated 30 May 2013. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000430_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named himself as the proposed respondent and stated his address as the interest party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his former friend Ehtesham who believed that his murder conviction was due to the applicant’s refusal to testify for him and give false testimony to support an alibi defence. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 May 2025. A notice of hearing with a reminder[2] of the consequence of absence dated 7 April 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Several phone calls were made to the applicant’s given telephone number on 7 and 8 May, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.  The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[3] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  In his Form 86, the applicant stated that his life would be in danger if he were to return to Pakistan. However he did not provide any particulars or raise any other grounds for the intended judicial review.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5]

10.  In the present case, the Board assessed the applicant’s evidence by considering all the evidence on paper as the applicant told the Board at the hearing that he did not wish to give evidence, and that he had nothing to supplement. The Board found that all the applicant had disclosed was purely hearsay evidence without any supporting facts. It found that the applicant’s evidence to be pure hearsay and thus unreliable. The Board also found that the applicant had never been inflicted with any physical or mental ill-treatment. It thus concluded that it is unlikely that he would face any future risk of harm. Further, the Board found that state protection would be available and internal relocation viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I note that the evidence summarized in the Board’s Decision (at [21]) is not entirely satisfactory in that there are some discrepancies and omissions.

12.  For example, in the Board’s Decision ([21(vii)]), the Board seems to have completely misunderstood the evidence about when Ehtesham would be released from prison. The Board’s summary of the evidence that “Ehtesham would be released after 6 years’ imprisonment.” is plainly wrong. It was not the applicant’s evidence that Ehtesham would be released on bail after serving 6 years of his sentence for a term of imprisonment of 25 years. Rather, according to [9.11] of the Director’s Decision, it was the applicant’s evidence that he believed that Ehtesham would be able to be released early after serving 12 years in prison. At the time of the applicant’s screening interview in 2013, he pointed out that as Ehtesham had already served 6 years, he would be able to be released 6 years after 2013.

13.  Pertinently, the Board also does not seem to have assessed a very important aspect of the evidence in relation to the threat made by Ehtesham, which formed the foundation of the applicant’s fear. At [9.10] of the Director’s Decision it was noted that when the applicant’s cousin Mehr Imran visited Ehtesham in prison, Ehtesham told Mehr Imran that he would settle the score with the applicant for his refusal to testify on his behalf. Importantly, at [9.11] of the Director’s Decision, the applicant explained why he was fearful of Ehtesham. It was stated that when Ehtestham was released from prison, he was afraid that he could be killed as he always carried a pistol with him. The applicant said that he had before witnessed Ehtestham shot people including Saleem (in respect of which shooting he had confessed to the applicant: see [9.5] of the Director’s Decision); and a man in his area who had a money dispute with him. At [9.10] of the Director’s Decision, it was noted that in January 2012 (after the applicant had fled Pakistan), Ehtesham telephoned and said directly to the applicant that when the applicant returned, he would settle the score with the applicant.

14.  In the Board’s Decision, there was no mention of the above salient aspect of the evidence. In the circumstances, it appears that the Board has not applied a high standard of fairness by conducting a proper credibility and risk assessments of the applicant’s evidence see: Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448. In the circumstances, the Board’s Decision arguably is tainted with procedural unfairness and is unreasonable.

15.  In the Board’s assessment of the applicant’s evidence, it appears to have included some prejudicial evidence by making references to a document in the Director’s intended removal proceedings in 2007 (the Board’s Decision [22]); and to his conviction and sentence in Hong Kong in February 2013 for possession of dangerous drugs (the Board’s Decision [24] ).

16.  After having referred to the “Interview Report” of (Grounds for non-removal), the Board found that the applicant had given a completely different version of his account. In FB v Director of Immigration, [2009] 2 HKLRD 346 (Saunders J), it was propounded that a high standard of fairness requires non-refoulement claimants to be legally represented in their claim proceedings before the Director (including screening interviews). Thus, it seems to be unfair for the Board in the present case to rely on the previous inconsistent statements apparently given without legal representation in its assessment of the applicant’s evidence.

17.  The applicant’s previous criminal conviction is not relevant to the credibility assessment or risk assessment. By having included this evidence in the Board’s Decision, the Board appears to have given an appearance that he had include the highly prejudicial materials in the assessment, and thus failed to act in accordance with the requirement of high standard of fairness.

18.  In considering the availability of state protection, the Board cited passages from various sources of country of origin information (“COI”) and it then arrived at the view that the Pakistani government had taken steps to monitor the conduct of Pakistani police and improve their effectiveness. Crucially in this case, the applicant’s case is that he was arguably a witness to the crime committed by Ehtestham (at least the shooting of Saleem). The Board should have examined the relevant COI in relation to the availability of the police protection to witnesses in crimes. By having made no mention of such COI, the Board’s finding on state protection is arguably irrational, tainted by procedural unfairness and arguably does not meet the required high standards of fairness.

19.  Notwithstanding having considered the question as to the viability of internal relocation and concluded that there is no indication that Ehtesham and his family could locate the applicant anywhere in Pakistan, the Board seems to have overlooked the applicant’s evidence that he believed Ehtesham “was wealthy, influential, and with good connection with famous politicians, it would not be possible for [him] to have a safe internal relocation in Pakistan”.

20.  The Board only took into account (at [44] of the Board’s Decision) the applicant’s personal attributes (that as an able-bodied male it would not be unduly harsh for the applicant to relocate to other parts of Pakistan) without assessing the evidence in relation to Ehtesham’s potentially high mobility. Despite having stated in [18(vi)] of the Board’s Decision, that Ehtesham had previously absconded to Rawalpindi and Islamabad, the Board suggested (in [43] of the Board’s Decision) that Islamabad as one the cities the applicant could reasonably relocate to.

21.  The high standard of fairness requires the decision-maker to compare between the applicant’s “well-founded fear, whatever its source, and the possibility of living free from that fear somewhere else in the same country”: TK v Michael C Jenkins [2012] HKEC 1597 at [39].

22.  For these reasons, the Board’s finding on internal relocation is arguably unreasonable, tainted by procedural unfairness and does not meet the required high standards of fairness.

Conclusion

23.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Orders

25.  The Form 86 is amended on the court’s own motion.

26.  The Leave Application be granted.

27.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

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