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

HCAL 1700/2020

[2025] HKCFI 5359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1700 of 2020

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

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

2.  No extension of time be granted for the making of the application for leave to apply for judicial review, and the application herein be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 24 August 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 13 February 2018[1] (“the Board’s Decision”), which confirmed the decisions of the Director of Immigration dated 7 July 2015 and 25 October 2016 (“the Director’s Decisions”) rejecting the Applicant’s non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The Applicant’s personal background, the incidents alleged in support of his claim that his life would be threatened in Pakistan if returned, together with the relevant immigration and procedural history, were set out comprehensively in the Board’s Decision. It is unnecessary to repeat them, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[2]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  The Applicant is absent from the oral hearing. On the authority of Re Abdus Salam, CACV 125/2019 (unreported, 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me.

4.  The Applicant has made the Leave Application out of time. Pursuant to Order 53, rule 4 of the Rules of the High Court:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  For the reasons set out below, I do not consider that there is any good reason to extend the time permitted for the application for leave to pursue judicial review. In determining this matter, the relevant factors are as follows: (i) the length of the delay; (ii) the explanation provided for the delay; (iii) the merits of the substantive application; (iv) any resulting prejudice; and (v) whether the application raises questions of general public importance (see AW v Director of Immigration [2016] 2 HKC 393 (CA) at §§23-36; Re Thomas Lai [2014] 6 HKC 1 at §§43‑45 (cited in AW, supra); AH v Director of Immigration (2020) 23 HKCFAR 248 at §§17‑22, 36-44 (citing inter alia AW and Thomas Lai, supra); Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19, upheld in [2022] HKCA 1321).

6.  First, the delay in question is substantive. The Applicant has incorrectly identified the date of the Board’s Decision as 17 July 2020, when it should have been 13 February 2018. He has neither provided any explanation for the delay nor made any request for an extension.

7.  Most importantly, the Applicant has not identified any valid grounds for judicial review in his Form 86 (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142). In the supporting affirmation, he merely states that he made a confession based on his difficulties. He also claims to be illiterate and describes himself as a family man. He requests one more opportunity to elaborate on his situation. However, he has not pointed to any procedural or other public law errors allegedly committed by the Board, whether in relation to the applicable burden and standard of proof, the relevant law and key legal principles, or the Board’s assessment of the evidence, COI information, risk of harm, availability of State protection, or the viability of internal relocation.

8.  In view of the seriousness of the issues involved, I have reminded myself to apply the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). That said, it remained within the Board’s remit to make determinations, and it came to the view that it was not satisfied that the Applicant’s account of why he left Pakistan was credible. The Board further added that, even if it were to accept the Applicant’s account, it would still have dismissed his claim:

(1)  After considering all the relevant factors, the Board assessed the level of risk to be low. Accordingly, it concluded that the feared ill-treatment was unlikely to materialize.

(2)  In Pakistan, State protection is available, which would serve to lower or negate the perceived risk. Official channels exist for lodging complaints against police misconduct, and the government is committed to providing protection to its citizens. Following the alleged incident, the Applicant made a report to the local police but was not assisted. However, misconduct by a few officers in a local station did not reflect the stance of the broader police force. The Applicant did not escalate the matter to higher levels within the police hierarchy, and as such, the authorities were unaware of the situation. It could not therefore be concluded that the police were unwilling or unable to discharge its duties and provide him with protection.

(3)  It was not unreasonable for the Applicant to relocate to areas outside his home village in order to avoid the claimed risk and to earn a living for himself.

(4)  The Applicant’s alleged problems arose from personal disputes. There was nothing to indicate that the government was involved in these matters, nor was there any evidence to suggest that the family members concerned were public officials or acting in any official capacity. The Applicant was not physically ill-treated. The individuals involved were acting solely in their private capacities, without any official involvement. Their actions were not instigated by, carried out with the consent of, or acquiesced by any public official or person acting in an official capacity.

(5)  As it was unlikely that the claimed ill-treatment would materialize, the Applicant would not face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 if returned.

(6)  What the Applicant was facing, even if true, amounted to personal problems that had nothing to do with religion, race, nationality, membership of a particular social group or political opinion. As such, the circumstances did not fall within any recognized category of persecution risk.

(7)  On the facts of the case, the Applicant was not involved in the passing of any death sentence by a court of law or in acts of genocide. There was no evidence to suggest that his case was related to any form of arbitrary deprivation of life.

9.  Based on the aforesaid findings, the Board therefore concluded that the Applicant had not made out a case under any of the applicable grounds. As the Applicant has not demonstrated any basis or ground to challenge the legality, rationality, or fairness of such decision, the Court should not usurp the role of the Board as the primary decision-maker (see 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; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

10.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). As to prejudice, none arises from my decision not to grant an extension of time for the Applicant to pursue a judicial review that lacks merits. On the contrary, it is essential to adopt a disciplined approach in deciding whether time should be extended in such applications. This ensures the orderly conduct of public administration and avoids the inevitable delays that would result from allowing baseless claims to proceed out of time.

11.  Finally, I am also not persuaded that the Applicant has raised any issue that engages a matter of genuine public importance in this case.

Conclusion

12.  For these reasons, the Leave Application is 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

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