EHSAN ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2605/2019

[2025] HKCFI 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2605 of 2019

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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Ehsan Ullah (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 28 August 2019 (“2019 Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 12 April 2017 (“2017 DOI Decision”) in refusing the Applicant’s claim for protection under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”) (“BOR 2 Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Pakistani. He was born on 1 November 1988 in Punjab, Pakistan. He received 6 years of education and had been working on his family’s farmland since 2005 until he came to Hong Kong in 2009.

3.  The Applicant claimed that his paternal uncles (“Uncles”) wanted to harm or kill him because of a land dispute. He claimed that his father inherited a portion of a land (“Land”) from his grandfather in around 2002. The Uncles wanted to occupy the Land completely and attacked the Applicant, his father and brother in June 2009 (“Fight”). During the Fight, the Applicant injured the son of one of the Uncles (“Uncle’s Son”). The Uncles succeeded in taking control of the Land and drove the Applicant’s family away.

4.  The Applicant came to Hong Kong in August 2009 and lodge a non-refoulement claim (“NRC”).

5.  The Director assessed the NRC on the following grounds:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

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

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

6.  By a decision dated 14 May 2015, the Director refused the NRC (“2015 DOI Decision”). The Applicant’s appeal against the 2015 DOI Decision to the Board was dismissed by the Board on 6 February 2017 (“2017 Board’s Decision”). The NRC was thus concluded.

7.  By a letter dated 24 March 2017, the Director invited the Applicant to submit additional facts, if any, by 7 April 2017 which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under Section 8 of the BOR, including right to life under BOR 2.

8.  The Applicant failed to reply to the Director’s aforesaid letter as at 12 April 2017. The Director proceeded to further consider whether the Applicant would be subject to any risk of his absolute and non-derogable rights under the BOR (including right to life under BOR 2) being violated upon his removal to Pakistan (i.e. the BOR 2 Claim) in the light of the assessment on the proscribed risks as set out in the 2015 DOI Decision.

9.  By the 2017 DOI Decision, the Director dismissed the BOR 2 Claim. The Applicant challenged the 2017 DOI Decision by way of an appeal/petition to the Board (“Petition”). The Board decided to determine the Petition without a hearing pursuant to paragraph 15 of the Practice and Procedure Guide of the Administrative Non-refoulement Claims Petition Scheme on the ground that no issue arose in the Petition required clarification. By the 2019 Board’s Decision, the Board affirmed the 2017 DOI Decision and rejected the Petition.

10.  On 9 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2019 Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

11.  By another affirmation filed on 25 July 2024 (“2024 Affirmation”), the Applicant sought to withdraw his application for leave for judicial review herein stating that: “I have no problem in my country. I want to go back home.”

12.  By an undated letter received by the court on 19 August 2024, the Applicant applied to withdraw his application by the 2024 Affirmation on the ground that he was informed by his family that his problem was still serious. His life was still in danger and he wanted to continue with his case for judicial review herein. On 21 August 2024, I granted leave for the Applicant to withdraw his application by the 2024 Affirmation.

13.  On 25 February 2025, I heard the applicant’s application for leave for judicial review (“Court Hearing”).

Legal principles applicable to judicial review

14.  In a judicial review, the court does not step into the shoes of the decision makers.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: 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.”

16.  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 had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

17.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

18.  In the Supporting Affirmation, the Applicant exhibited the 2019 Board’s Decision but did not put forward any ground for his intended judicial review.

19.  In the 2017 Board’s Decision, the Board noted that the events relied on by the Applicant occurred many years ago and the Uncles were already in possession of the Land. The Board therefore found that the Uncles had no incentive to pursue the Applicant upon his return. The Board further noted that it was the Applicant’s own case that he was able to stay in Lahore without fear of harm for two months after the Fight. It found that internal relocation would be viable to the Applicant.

20.  In the 2019 Board’s Decision, the Board noted that the Applicant’s case for the BOR 2 Claim was essentially the same as his case in the previous appeal. Additional matters alleged by the Applicant were that Uncle’s Son had subsequently died as a result of the injuries sustained in the Fight; the Uncles had attacked the Applicant’s family in 2015 in an attempt to ask them for the whereabouts of the Applicant; and the Applicant’s father was tortured so badly that he subsequently died.

21.  The Board was of the view that the Applicant’s allegation that Uncle’s Son had died of the injuries suffered at the hands of the Applicant in the Fight was no more than a bare assertion with no evidence in support. Since the Applicant did not dispute that he caused injuries to Uncle’s Son, he could not seek protection under the BOR 2 to avoid refoulement to Pakistan and any subsequent arrest. The Board held that its findings in the 2017 Board’s Decision in respect of future risk and internal relocation were still applicable, i.e. the Board was not persuaded even to the low standard required that the Applicant would be subjected to any ill-treatment if he was refouled to Pakistan. The Board found that the Applicant would not face the BOR 2 risk upon his return.

22.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

23.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2019 Board’s Decision in affirming the 2017 DOI Decision, or in what way the 2019 Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

24.  Having rigorously examined the 2019 Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to seeking non-refoulement protection under the ground of BOR 2; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

25.  At the Court Hearing, the Applicant was unable to identify any errors of law, procedural unfairness or irrationality in the 2019 Board’s Decision.

26.  In the 2019 Board’s Decision, the Board maintained its previous findings on future risk and internal relocation made in the 2017 Board’s Decision. The Board further found that the Applicant had failed to establish a real and personal risk of being arbitrarily deprived of his life, in violation of the BOR 2, if refouled to Pakistan.

27.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under BOR 2. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2019 Board’s Decision or procedural unfairness at any stage of the BOR 2 Claim. The 2019 Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

28.  In the premise and having considered the 2019 Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 2 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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