IKRAM UL HAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2641/2019

[2025] HKCFI 3658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2641 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 10 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 March 2018 (the “Notice”), refusing his non-refoulement application.

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 paternal uncle because of a land dispute.

3.  The Applicant testified before the Board. The Board identified a number of significant inconsistencies in his evidence. He gave confusing evidence about the identity of his uncle who threatened him, i.e. whether he was his paternal uncle or maternal uncle. In the end, he gave an all-encompassing answer that his maternal uncle forced his mother and his paternal uncle forced his father in the land dispute. He gave inconsistent evidence as to the number of sons his paternal uncle has, whether the disputed land had been inherited by his father, whether his father had reported the gunshots by his cousins outside his house, and whether he had been threatened by the police during his detention. When confronted with the inconsistencies, he did not respond. The Board was not satisfied that the Applicant’s claims are truthful. It even found he had fabricated his claims in order to extend his stay in Hong Kong.

4.  On the basis of authoritative country of origin information (“COI”), the Board found the risks are localized and as an able-body person with eight years’ formal education, eleven years’ working experience and the ability to speak Urdu and Punjabi, he could relocate to other parts of Pakistan to avoid the perceived risks of harm.

5.  In conclusion, the Board found there could not possibly be any substantial grounds for finding that the Applicant would face any real risk of ill-treatment if refouled to Pakistan and that he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).

Grounds for judicial review

6.  The Applicant annexed a document to his Form 86 advancing seven grounds of appeal. These are as follows:

(1)  that the Board’s Decision and the Director’s Decision are wrong, unreasonable and unfair;

(2)  that the Director failed to give proper weightage to the presence of state acquiescence and that the Applicant was tortured by the state law enforcement agencies as well as those high up in the political circle;

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information (“COI”) and failed to take the Applicant’s personal circumstances into account;

(4)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting his case;

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board acted improperly and unfairly when assessing his explanations and asking him questions that he was not in a position to respond; and

(7)  the Board should have allowed the applicant’s appeal instead of dismissing it.

Some of these grounds are directed at the Director, some at the Board and some at both the Board and the Director. The Director’s decision in the Notice was superseded by the Board’s Decision: see Re Moshsin Ali[2]. It is not the subject matter of the leave application. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board.

7.  The grounds are worded in general terms. The Applicant was unable to provide particulars. He also said the statement of grounds was prepared by his friend and he did not understand its content. He said he did not remember the contents because his memory was poor and the statement was prepared five to seven years or ten to twelve years ago. He said he told the Board everything about his case. He answered the Board’s questions which he understood and did not answer those which he did not. He could not explain why he did not ask the interpreter to clarify those questions so that he could understand and answer. He vaguely mentioned that the police sided with his uncle, which may be taken as evidence of state acquiescence. However, the Board’s finding was that his evidence on that issue was inconsistent. What weight to be given to such inconsistent evidence is a finding of fact for the Board. Indeed nearly all the grounds are directed at the Board’s finding of fact, which the Court may not interfere in a judicial review, save for errors of law, procedural unfairness and irrationality in the Decision.

8.  Furthermore, after having been explained the law applicable to judicial review, the Applicant confirmed that he had no complaints about procedural unfairness and irrationality in the Notice and would leave the issue of errors of law to the Court. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

9.  There are no substance of these grounds.

Overall scrutiny

10.  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, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and had fabricated his claim. Applying the law applicable to non-refoulement protection to the limited fact it accepted, 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. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  For the above reasons, the 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