AHMED SAFEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3891/2019

[2025] HKCFI 6208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3891 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 the Applicants’ submissions in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 30 December 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 20 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 September 2018 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a national of Pakistan.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  These will not be repeated here.  In gist, he claims he will be harmed or killed by a powerful member of the Pakistan Muslim League (Nawaz) (“PMLN”) called “Amin” for having refused to vote for the PMLN, if he is returned to Pakistan.

3.  In his non-refoulement claim form, the Applicant said neither he nor any family member ever belonged to or had been associated with any political party, but he supported the Pakistan Peoples party (“PPP”) since 2013.  At the screening interview, he told the immigration officer that he and his brothers were active members of the Pakistan Tehreek-e-Insaf party (“PTI”).  During the election campaign of 2013, Amin and about ten men carrying guns approached him and told him to vote for the PMLN or they would kill him. Presumably, he did not vote for the PMLN.  Nevertheless, PMLN won the election.  One day in 2014, while he was driving with his family, his car was intercepted by another car.  Amin’s brother and three others came out and told him that their party won the election but he had refused to support their party.  On his sister’s plea, the men left. But when he returned home, he received a call telling him to leave the country or else he would be killed. The Applicant filed a First Information Report with the police.  In February 2015, while he was at a restaurant with six friends, Amin’s friend with five people approached him and hit his head with a glass bottle. 

The Board’s finding

4.  The Applicant testified before the Board.  The Board had a number of concerns about his evidence.  He told the immigration officer that he was hit with a glass bottle once, but he told the Board that he was attacked with a glass bottle twice. 

5.  Prior to his filing of the Notice of Appeal, the Applicant said he had been assaulted three times in 2013, 2014 and 2015.  In his Notice of Appeal, he said he had been attacked many times.  At the hearing, he said initially that he had been attacked five to six times, then he changed to one or two times and finally settled on three times. 

6.  It was the Applicant’s case that Amin was a powerful man who wanted the Applicant to join the PMLN, but when the police said he should leave the Applicant alone, Amin complied notwithstanding he had paid a bribe to the police. 

7.  Twice in the past, the Applicant had referred to the PPP as his party instead of the PTI.  His explanation was that it was the mistake of the person who wrote those statements.  The mistake was made on two different occasions.  The Board was not prepared to accept that two different people made the same mistake. 

8.  At the hearing, the Applicant made a number of entirely new claims about the actions taken by the police upon his complaint. Up until the hearing, his evidence was that the police either failed to act (after the 2013 and 2014 incidents) or under pressure he withdrew his complaint (after the 2015 complaint).  But at the hearing, he said that the police reacted in 2013 and forced the PMLN into a peace deal.  In 2014, the police arrested Amin and others from the PMLN for stopping the Applicant and trying to kill him.  The Board also found it impossible to accept that the police would charge someone with attempted murder for stopping the Applicant’s car.

9.  Based on the gaps, inconsistencies and other problems with his evidence, the Board rejected the Applicant’s evidence, individually and cumulatively, in their entirety.  It found that the Applicant was never involved in politics as a member or supporter whether of the PTI or the PPP.  He was not imputed by others as a member or supporter of any political party.  It found the PMLN and Amin did not have any interest in the Applicant and had never asked him to join the PMLN or to leave the village.  The Applicant was not of any adverse interest to Amin, the PMLN or any other individual or organisation in Pakistan.  He was never threatened or assaulted. He did not have to leave his home in order to escape harm from the PMLN.  He did not have to seek medical assistance or to go to the police.  In the light of these findings, the Board considered there is not a real risk the Applicant would face any of the proscribed forms of harm should he return to Pakistan. Applying the law applicable to non-refoulement protection, the Board found the Applicants are not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

Grounds for judicial review

10.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, he had filed a written submission on 13 November 2025 shortly before the hearing, from which the Court was able to extract the following grounds:

(1)  the Director and the Board reached the decision wrongly, the decisions were unreasonable and unfair;

(2)  the Director failed to appreciate the importance of state acquiescence;

(3)  the Board placed too much reliance on country of origin information (“COI”) but failed to take contrary COI or his personal background and experience into account;

(4)  the Director failed to take such argument into account;

(5)  on the basis of its finding of facts, the Board should have allowed the appeal;

(6)  the Board’s Decision is unreasonable and irrational; and

(7)  the Board relied on some web news which were not officially recognized by the authorities.

Some of the grounds were directed at the Director.  As the Director’s decision in his Notice had been superseded by the Board’s Decision and is not reviewable, the Court assumed for the Applicant’s benefit that all the grounds are directed at the Board.

11.  Grounds (1), (5) and (6) are un-particularised attacks on the Decision based on unfairness, irrationality and arguably error of law.  As mentioned in paragraph 10, after the legal principles applicable to judicial review had been explained to the Applicant, he confirmed that he had no complaint about error of law in the Decision, procedural unfairness or irrationality in the Decision.  When asked again in relation to these specific grounds, he repeated his confirmation.  In any event, the Court will re-visit these grounds in its overall scrutiny of the Decision. 

12.  Under Ground (2), the Applicant submits that he was an active supporter of the PTI, but the party in power was the PMLN which was terrorising supporters of the PTI in the neighbourhood.  His submission does not support the existence of state acquiescence in his case.  In fact, he had advanced no evidence of state acquiescence before the Board.  To the contrary, his testimony indicates that the Pakistani police did perform their duty in protecting the citizens.  They allowed the Applicant to file a first information report against Admin.  They arrested Amin and his men for stopping the Applicant’s car and even charged Admin with murder (which the Board doubted).  It is also his evidence that the police forced a peace deal on PMLN in 2014.  

13.  In respect of Ground (3) the Applicant was unable to give any meaningful submission in support of his complaint that the Board had placed too much reliance on COI which is unfavourable to him and failed to take into account their personal background and experience and COI favourable to the Applicant.  All that he could submit is that the other political party gave threats to him.  In fact, having found the Applicant’s claim was fabricated, the Board did not have to rely on any COI to reject his claim. 

14.  Despite repeated attempts, the Applicant was unable to identify the argument which he complained the Board had failed to take into account under Ground (4).  His submission is that there are many unfair decisions by the Pakistani government and that was why he had to leave his country.  His decision to leave Pakistan was because of his fear of being harmed or killed by Amin.  It is difficult to see the nexus between his the government’s unfair decisions and his decision to flee Pakistan. 

15.  He conceded he had nothing to submit in respect of Ground (7).

Overall scrutiny

16.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense and inherent probability.  The Board found the Applicant was not a witness of truth.  It even found he had fabricated his claims in relation to the harm he feared from Amin and the PMLN.  Accordingly, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the Unified Screening Mechanism.  These are finding of facts exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  For the above reasons, the Applicant’s leave application is refused.

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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003891_2019_files/the_Board's_Decision.pdf