HAROON MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2613/2019

[2025] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2613 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 January 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 22 April 2019. His application was filed on 9 September 2019, which is late for more than months. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 10 February 2025.

The applicant

3.  The applicant, aged 38, is a national of Pakistan. He arrived in Hong Kong on 9 August 2011 on the strength of his passport and was refused landing. On 18 January 2013, he was convicted of the charge of using a false instrument and sentenced to 8 months’ imprisonment. He had lodged a torture claim, which was refused by the Director on 12 October 2012. The applicant subsequently lodged his non-refoulement claim on the basis that, if refouled, he would be harmed or killed by enemies because the applicant’s father murdered their police relatives having connection with Pakistan People Party (“PPP”) and that he and his family are supporters of Pakistan Tehreeq-e-Insaaf (“PTI”).

4.  In 1989 when the applicant was 2 years old, his father killed 2 police brothers because they bullied his uncle, his father’s brother. His father was finally convicted and sentenced to death. However, the family of the 2 deceased police brothers still pursued the grudge and they assaulted the applicant and his brother. They vowed to kill the whole family. The applicant moved to live in other places. Finally, on 31 July 2011, the applicant left Pakistan for China. He arrived at Guangzhou, from where he went to Shenzhen. On 9 August 2011, he came to Hong Kong.

5.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 29 January 2018 (“the Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  The Director refused the applicant’s claim for the reasons that there were no substantial grounds for believing that the applicant would have a real chance of facing any real and personal risk from the enemies [15-16]; reasonable state protection was available and the Country of Origin reports indicated that although the police might accept bribes and suffer from deficiencies in a number of areas, the Pakistani government had taken practical steps to monitor the conduct of the police [32-33]; and the applicant’s claim was a localized problem and internal relocation alternatives were available and reasonable [35-37].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 7 November 2018, the Board conducted an oral hearing. The applicant had given evidence before the Board.

9.  The Board found that his evidence was in contradiction with his evidence given to the Director, which the Board considered undermined the applicant’s credibility [37]. Even so, the Board was willing to give the applicant the benefit of the doubt and accepted the core of his claim, but found that this was a private dispute between the applicant and the family of the dead police officers [38-40].

10.  Having considered the evidence, the Board found that the applicant had substantiated a real risk under BOR 2 and/or BOR 3 [40]. However, the Board found that internal relocation to Hyderabad would be reasonable and he will not suffer undue hardship [42-45]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he could not say that the Board was wrong. Nevertheless, he asked the Court to review the Board’s Decision.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.