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

HCAL 2801/2019

[2025] HKCFI 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2801 of 2019

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;

The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 24 September 2019, 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 4 March 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 December 2017 (“Director’s Decision”) rejecting the applicant's non‑refoulement claim.

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 28 February 2025.  A notice of hearing with a reminder[1] of the consequence of absence dated 5 February 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Telephone calls were made to the applicant’s given telephone number the day before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of Pakistan.  On 4 September 2014, the applicant was arrested by police in Hong Kong for illegal remaining in Hong Kong and transferred to the Immigration Department for further investigation.  Upon inquiry, the applicant stated that he entered Hong Kong on foot from mainland China on 4 September 2014 without permission.  Previously he flew from Lahore to Bangkok on or about 27 August 2014 and took another flight from there to Guangzhou, where he stayed for about 6 days before taking a bus to Shenzhen, and then took a taxi to the Hong Kong border.  On 6 September 2014, the applicant raised his non-refoulement claim. The applicant’s claim was considered under all applicable grounds - the risk of torture^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The claim was based on a fear that if refouled, he would be harmed or killed by a gangster named Khaleel and his two brothers and/or their associates after  Khaleel’s group shot death one of the applicant’s cousins.

5.  According to the applicant, in 2011 an altercation between Khaleel’s group and his relatives and friends when he and his friends were playing cricket.  Khaleel’s group opened fire at the applicant and his relatives and friends. Six of the applicant’s cousins as well as one of his uncles suffered gunshot wounds.  A member of the Khaleel’s group struck the applicant on his head with a wooden stick.  After the police had arrived, the applicant and his injured uncle and cousins were then taken to a local hospital.  The applicant received 7 stitches to a wound to his left eyebrow, while one of his cousins was pronounced dead upon arrival at the hospital.

6.  After the applicant and his relatives made a First Information Report at the police station, the police arrested Khaleel and his two brothers as well as two others from their group.  In the next two and a half years, Khaleel and his brothers were remanded in prison.  However, in late 2013, Khaleel and his brothers were released on bail.  About 2 months after their release, Khaleel and his brothers demanded the applicant to withdraw his criminal complaint against them, lest he would face the same fate as his deceased cousin.  The applicant reported this death threat to the police, who told him that they would investigate.

7.  Around 2 months later, the applicant reported to police the illegal alcohol activities that Khaleel and his brothers were involved in, which resulted in the police seizing their alcohol, and exacerbated their animosity towards the applicant.  One of the Khaleel’s brothers made a further death threat to the applicant by telephone.  Subsequently the applicant received many threatening calls from Khaleel and his brothers, who also followed the applicant. About 3 months after the police’s seizure of the alcohol, Khaleel and his brothers shot at the applicant as he was on his motorbike but missed. Fearing that Khaleel and his brothers would eventually kill him, the applicant decided to flee Pakistan.

8.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low because the applicant suffered relatively little harm compared to his cousin, and had not suffered any gunshot wounds during the shooting incidents.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

9.  On 10 December 2018, the applicant attended a hearing before the Board.  At the Board hearing, the applicant adopted his prior written claims, and answered questions from the Board.

10.  The Board found that there was no real risk of harm.  The Board found the applicant’s evidence to be unreliable due to his reluctance to answer questions at the Board hearing, his failure to make prompt and full disclosure of material facts, and due to material inconsistencies between his written evidence and oral statements at the Board hearing.

11.  At the hearing, the applicant mentioned for the first time that there was an additional shooting by Khaleel and his brothers at the applicant’s home. However, he did not provide a satisfactory explanation for having fail to disclose this fact earlier.  The material inconsistencies included conflicting evidence as to whether the applicant had ever been injured by Khaleel and his brothers, whether he was at home during the shooting incident at his home, and as to the relative position of the shooter when he was shot at while riding his motorbike.  The Board was not persuaded by the applicant’s explanation for the inconsistencies.  As a result, the Board considered his evidence as unreliable and rejected his claim.  After having considered the relevant COI, the Board found that reasonable state protection and internal relocation alternatives would be available.  The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.  As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant exhibited a copy of the Board’s Decision, the Director’s Decision, and an appointment slip with an appointment date of 14 March 2019 issued by the Tuen Mun Hospital, and stated that all the statements he made to the Board were true.  Since the applicant was also absent from the hearing, the applicant has submitted no grounds at all in support of the Leave Application.

14.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

15.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant was unreliable and that there was no real risk of harm.  The Board also concluded that reasonable state protection would be available and internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with.

16.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

17.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.  Additionally, the Leave Application is late for more than 3 months out of the prescribed time limit of 3 months.  I consider a delay of 3 months is substantial.  A good explanation is required.  However, the applicant provided no explanation for the delay.  This, coupled with the lack of merits as discussed above, this court is therefore disinclined to exercise its discretion to extend time to allow the applicant to file the Leave Application out of time.  The Leave Application shall also stand dismissed for this court’s refusal to extend time to file the Leave Application out of time.

Order

19.  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