ALI SHOUKAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2737/2019

[2025] HKCFI 4338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2737 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.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 September 2019 for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 September 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 August 2018, refusing his application for non-refoulement protection.

2.  The Applicant is a Pakistani national. His personal background, the factual background leading to the present application, the basis of his claim and 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. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims that if returned to Pakistan, he will be harmed or killed by his neighbour who is a member of the Legislative Assembly and a member of the Pakistan Muslim League (Nawaz) (“PMLN”) and his subordinates because of a dispute over his father’s farmland. He claims his neighbour had stolen his family’s deodar tree, assaulted and threatened him with death because of the land dispute since 2005. He went to work in Dubai in 2006 to avoid his neighbours, but had to return in 2009 after his visa expired. In March 2015, while he and his father were working on their farmland, the neighbour and his subordinates came to take over the farmland. When his father refused to give up the land, they attacked him and his father with axe and sticks. The Applicant fell unconscious. He and his father suffered cut wounds and were hospitalized for three months and two months respectively. In June 2015, he went to the Land Department to obtain the land documents for the purpose of getting back the farmland. He and his family moved to Mirpur city. Then, he flew to Mainland China and sneaked into Hong Kong on 17 January 2016.

3.  The Applicant testified before the Board. The Board found he testified in a half-hearted manner with an air of resignation. It considered his evidence sketchy, minimalistic, inconsistent with real and lived experience. When he was given the blank non-refoulement claim form (“NCF”) to fill in, he was informed that it is his duty to substantiate his claim by providing, inter alia, supporting documents. But, he did not produce documentary evidence of his or his father’s ownership of the farmland which he claimed to have been taken over by his neighbour. His answers in the NCF suggest he had obtained the documents from the Land Department in June 2015 for the purpose of substantiating his father’s right to the farmland. His explanation for his failure to produce the documents was garbled and self-contradicting. First, he said he had never been asked to do so, implying that he had the documents. Then, he said he had not been able to obtain copies of the land documents as the people in the Land Department were on the side of his enemies and did not provide him with the documents. The Board considered such explanation implausible. He said his neighbour was a powerful political figure, being a member of the Legislative Assembly of Azad Kashmir since 2005 and having run for election in the Samahni Constituency in 2016. He was unable to produce documentary proof of his neighbour’s position as a member of the Legislative Assembly and having run for the 2016 general election. His explanation was again that he had never been told to produce the documents. From the country of origin information (“COI”) the Board was able to find a list of candidates in the Samahni Constituency in 2016 general election, but could not find his neighbour’s name or its variant in the list. The COI also showed that his neighbour is neither a current nor has been a past member of the Legislative Assembly of Azad Kashmir. The Board found the Applicant to be an incredible witness and that his evidence on the core elements of his claim incredible. It found he had failed to prove the factual basis to support his claim for protection under any of the applicable grounds under the Unified Screening Mechanism. Hence, it dismissed his appeal against the Director’s Notice.

Grounds for judicial review

4.  At the hearing, after the legal principles applicable to judicial review was explained to the Applicant, he confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, he had advanced the following grounds of application in his submission dated 14 April 2025:

(1)  he disagreed with the decisions of the Board and did not think the decision has been determined fairly;

(2)  without knowing how the Decision was determined it is not easy for him to appeal the Decision; he should be allowed to understand more about their claim;

(3)  he was not given proper legal and language assistance;

(4)  the Board was in breach of procedural fairness in that:

(A)  the Board had unlawfully fettered its discretion by refusing his appeal;

(B)  the Board acted in a procedural unfair way in dealing with his appeal;

(C)  the Decision is unreasonable and irrational or are a result of procedural error or unfairness;

(D)  the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  “the discriminatory act of the authorities towards non-refoulement claimants merely on the basis of quick disposed of non-refoulement cases is unacceptable and is determinate to the spirit of judicial system”.

5.  These grounds are all lacking in particulars. Ground (5) is incomprehensible. In answer to the Court’s question, the Applicant said these grounds were written by him and he knows what they meant. These grounds were then read back to him by the interpreter in Urdu which is the Applicant’s first language. He was asked to elaborate on these grounds and provide particulars of the unfairness, irrationality, the content of the duty of care and the discriminatory act alleged. He was unable to do so.

6.  On the basis of the Board’s Decision, Ground (1) is a direct challenge of the Board’s finding of fact which is not permissible. The Applicant was also unable to provide particulars of the unfairness alleged.

7.  As for Ground (2), the Applicant accepted that he was legally represented by the Duty Lawyer Service at the screening interview before the immigration officer and that the Director’s Notice was served on him through the Duty Lawyer Service and explained to him. There is no substance in this ground.

8.  As for Ground (3), the Applicant accepted that he had been given legal and language assistance. There is no substance in this ground.

9.  Grounds (4) and (5) are wholly lacking in particulars. The Court is therefore unable to consider them.

10.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

11.  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 primary evidence carefully and tested it against common sense, inherent probability and authoritative and credible COI. It found the Applicant an incredible witness and rejected his evidence on the core elements of his claim. It gave detailed reasons for its finding. Then, applying the law applicable to non-refoulement protection to its finding of fact, the Board found the Applicant had failed to establish the factual basis to support his claim for non‑refoulement protection under any of the applicable grounds. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are 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 or procedural unfairness or that the Decision 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 of harm. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

12.  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