DANISH ARSHAD MEHMOOD alias DANISH ARSHAD MOHMOOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2300/2025

[2025] HKCFI 5233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2300 OF 2025

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Pakistan who entered Hong Kong illegally on 29 October 2006 and was arrested by police more than one year later on 3 January 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by a local gangster over some personal dispute between the gangster and the Applicant’s family in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sangh Mora Zildara, Jatlan Mirpur, Azad Kashmir, Pakistan. After leaving school he worked in various manual jobs, and later operated a shop in the Jatlan market repairing motor vehicles and bikes in his home district.

3.  In about 2002 a local gangster approached the Applicant’s mother with a proposal to marry one of her daughters to a relative of his, but when the Applicant’s mother refused, the gangster became furious and shot her with his gun that she subsequently died from her injury in the hospital.

4.  Later when the Applicant armed with a gun went to the gangster’s home to try to take revenge against him, the gangster and his followers fired gun shots back at him but missed, and that the Applicant managed to flee from the scene unharmed and ran home.

5.  Thereafter when he heard that the gangster and his men were looking to kill him, the Applicant fled to Jhelum to take shelter in a friend’s place before moving on to Karachi and Mirpur, and on 27 October 2006 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police more than one year later he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 16 January 2015, the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from that local gangster and followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the gangster to seriously harm or kill him other than to deter him from taking revenge against the gangster, nor is it accepted that there would still be any adverse interest in the Applicant after all these years since he left the country, that in any event it was a private dispute between the Applicant and the gangster only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.  On 30 January 2015, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 October 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2016, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision, the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any local gangster over any dispute that caused him to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his failure to raise it upon his first arriving in Hong Kong until more than one year later and only after his arrest by the police, that even if his account of events occurred prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of the gangster to seriously harm or kill him or that the gangster would still have any adverse interest in him after all these years since he left the country in 2006, and that in any event it was a private dispute between him and the gangster only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 28 December 2016, the Director on his own initiative in writing invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response or reply from the Applicant, the Director by a Notice of Further Decision dated 12 January 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

11.  On 24 January 2017, the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not find necessary to hold any further oral hearing and proceeded to deal with his appeal on paper, and by a Decision dated 7 August 2017 the Board also dismissed his appeal upon finding that even on the factual basis of his own case that his claim simply did not engage the BOR 2 ground on its limited scope.

12.  The Applicant’s subsequent late application for leave to apply for judicial review of this second decision of the Board was then refused by this Court on 3 June 2021 upon finding no good reason for his serious delay of more than 7 months with his application, that he had failed to put forward any proper ground for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1235/2018 [2021] HKCFI 1597).

13.  The Applicant’s subsequent and similarly seriously late appeal against the Court’s decision was also dismissed by the Court of Appeal on 2 April 2025 (CAMP 192/2024 [2025] HKCA 231).

14.  Some 6 months thereafter on 15 October 2025 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of the first decision of the Board of 2 December 2016, and again no ground for seeking relief was given in his Form or his supporting affirmation in which he just repeated his claim as before in details, and asserted that he has since formed a family in Hong Kong with 2 small children that needed his care as a parent that he cannot return to Pakistan.

15.  By then the Applicant was clearly also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

16.  As the last day of the three-month period for him to file his Form 86 against the first decision of the Board dated 2 December 2016 fell on 2 March 2017, the Applicant was therefore some 8 ½ years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of 8 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation other than some suggestions that he had been detained or in prison during the intervening period but without any further details or documentary evidence which even if true cannot be accepted as any justification for such serious default, and as such I am unable to see any good or valid reason for his such serious delay.

18.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, while his claim to have formed a family in Hong Kong with small children that require his parental care even if true cannot be accepted as any valid or reasonably arguable ground for his intended challenge: See Comilang & Anor, FACV 9/2018 [2019]; and Luis & Ors, FACV 10/2018 [2019] HKCFA 10. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

19.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

20.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

22.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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