JABROAT ANOSH v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 15 April 2014 and was arrested by police on 11 July 2014, and was subsequently charged and convicted of the offences of illegal entry, theft, possession of an identity card relating to another person, and driving without a driving license or third party insurance, and was sentenced to prison for 18 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a non‑refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gujranwala, Pakistan where he inherited a two-story property from his deceased parents, but which his maternal uncle demanded that he should transfer to him in settlement of some debts which he claimed that the Applicant’s mother owed him, but which was refused by the Applicant in the absence of any documentary evidence of such debts, and which led to serious conflicts between the two of them.

3.  In late 2013 their conflicts escalated when the Applicant was attacked by his uncle and his uncle’s followers with wooden sticks and other weapons at the market, but the Applicant managed to make his escape without serious injuries.

4.  On another occasion in February 2014 while playing cricket with his friends in a playground, the Applicant was attacked by his uncle and son together with some other men with hockey sticks and other weapons that he suffered cuts and bruises all over his body that he collapsed onto the ground and was subsequently taken to the hospital for medical treatments.  

5.  As a result the Applicant became fearful for his life, and so shortly thereafter he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 November 2018 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 7 January 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private land dispute between him and his uncle 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 207 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 it would be difficult if not impossible for his uncle to locate him.

8.  On 14 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board, the Applicant in writing on 18 June 2020 requested to “cancel” his appeal as it was safe for him to return to his home country, and upon being satisfied that the Applicant’s request was freely sought, that he fully understood the consequences of his withdrawal, and that he had good reason to do so in that it was safe for him to return to his home country, the Board by a letter dated 17 July 2020 directed that his appeal be withdrawn and dismissed, and that it also confirmed the Director’s decision as having finally determined and disposed of the Applicant’s non-refoulement claim.    

9.  However, less than 5 months later on 8 December 2020 the Applicant filed a Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decisions but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.     

10.  By then the Applicant was also 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.

11.  As the last day of the three-month period for him to file his Form 86 as regard the Board’s decision fell on 17 October 2020, the Applicant was therefore some 7 weeks late with his application, never mind as regard the much earlier decision of the Director, 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.

12.  In the Applicant’s case, a delay of 7 weeks to challenge the Board’s decision must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 17 July 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

13.  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 of the decision of either the Board or the Director, or for that matter why he now wants to challenge both decisions when he less than 5 months ago just confirmed to the Board that it was safe for him to return to his home country, and for which the Board acceded to his request to withdraw his appeal against the Director’s decision. As such, the Applicant has simply failed to demonstrate any reason or justification for his intended application at all.  

14.  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.

15.  In the Applicant’s case, the Board withdrew and dismissed his appeal at his own request upon being satisfied that it was freely sought, that he fully understood the consequences of the withdrawal, and upon his confirmation that it was safe for him to return to his home country, and as held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669 that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal, and as stipulated in Section 37V(2)(b) of the Immigration Ordinance, a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of notwithstanding the lack of determination on the merits, as the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, and hence in the present case of the Applicant, the Director’s decision has finally determined and disposed of his non-refoulement claim.

16.  As regard that decision of the Director, in the absence of any error of law or irrationality or procedural unfairness in his process before the immigration officer, during which the Applicant was legally represented and was able to make proper representation of his claim to the Director, or in his decision being clearly and properly identified by the Applicant, I am unable to see any reasonably arguable basis to challenge the findings of the Director either, including that of the risk of harm in the Applicant’s claim which on the factual basis of even his own case arose from his private land dispute with his uncle is a localized one and that it is not unreasonable or unsafe for the Applicant 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.                

17.  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.

18.  Moreover, the Applicant recently on 25 August 2025 in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Pakistan as soon as possible.

19.  In the premises, and as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either the decision of the Director or the Board, and in view of his latest confirmation of having no more problem returning to his home country, I accordingly dismiss his leave 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