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

HCAL 1705/2020

[2025] HKCFI 5361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1705 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 oral submissions by the Applicant in open court

(1)  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

(2)  The application for leave to apply for judicial review 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 14 August 2020 (“the Board’s Decision”), affirming the Director of Immigration (“the Director)’s decision dated 20 August 2018 (“the Director’s Decision”), which rejected his 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 he would be killed by Shi’a individuals in Pakistan, 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[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  For the reasons set out below, I am not satisfied that the Applicant’s intended judicial review 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). Accordingly, I have refused leave. In so doing, I have reminded myself, given the seriousness of the issues involved, of the need to apply the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.  The Applicant has not identified any valid grounds for judicial review in his Form 86 or supporting affirmation, pointing to any procedural or other public law errors allegedly committed by the Board in reaching its decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142).

5.  The Board, as the primary decision-maker, properly set out the applicable burden and standard of proof, together with the relevant law and key legal principles. It then assessed the evidence, COI information, risk of harm, availability of state protection, and viability of internal relocation. The determinations that followed were reached after such assessment and fell squarely within the Board’s remit:

(1)  The Board took account of the gist of the Applicant’s case, namely that he was a Sunni who feared being killed by Shi’a individuals. He referred to a dispute over a mosque in his village in 2014, and further stated that in July 2015, there was a conflict over a mosque shared between Sunni and Shi’a residents. The Board also noted that the Applicant left for Karachi for four months, then travelled to Mainland China, from where he eventually arrived in Hong Kong.

(2)  The Board found that the Applicant did not lodge any complaint with the police regarding the alleged dispute over the mosque, and was unable to explain why he had not done so. He told the Board that he had been threatened by two Shi’a men, yet again did not report the matter to the police. Instead, he left for Karachi, a journey of approximately one day by train from his home area, and remained there for four months, during which he experienced no difficulties. The Board further noted that the Applicant subsequently travelled to Mainland China.

(3)  The Applicant also told the Board that the Shi’a residents in his village were constructing their own mosque and that there was no longer any dispute. Nevertheless, he stated that he remained afraid to return to Pakistan, although he was unable to articulate to the Board what, specifically, he feared.

(4)  The Board attached no credibility to the Applicant’s claim. The Board considered his claim to be among the “vaguest” it had encountered. The Applicant was unable to state with any clarity when the dispute over the mosque occurred. He was also unable to explain why he felt threatened by the alleged conduct of two Shi’a men in his village, or why he could not remain in Karachi, where he had stayed for four months without incident. It remained unclear why he ultimately left Pakistan. Of critical significance, the Applicant could not explain to the Board why he could not now return to Pakistan, given that the dispute had ended.

(5)  For the sake of completeness, the Board noted that the source of potential harm in this case was not the state, but private individuals. At this point, the Board observed that there was no evidence, even in the Applicant’s own account, to suggest he had been subjected to serious harm.

(6)  The Board noted that the Applicant was a fit, young man with a history of employment and had remained in Karachi for two months without experiencing any difficulties. The Board found that there was no apparent obstacle to his relocation to another part of Pakistan.

(7)  The Board assessed that the Applicant had not established a well-founded fear of persecution on account of his religion, and did not face a real risk of any form of serious harm in the remaining parts of Pakistan. Such assessment was based on the Applicant’s accepted profile and reliable country information relating to Pakistan. The Board found that the Applicant could reasonably relocate internally within Pakistan to avoid any alleged persecution.

(8)  For the reasons given, the Board found that the Applicant had not established a “well-founded fear” of persecution in Pakistan on account of his race, religion, nationality, membership of a particular social group, or political opinion.

(9)  The Board found, on the evidence provided, that there was no real risk to the Applicant’s right to life, nor any prospect that he would face torture or cruel, inhuman or degrading treatment or punishment upon return.

(10)  For the reasons set out above, the Board also found that there was no real risk of torture to the Applicant.

(11)  It was neither the Applicant’s claim that there was a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan, nor did he adduce any evidence in support of such a contention.

6.  It was based on the aforesaid findings that the Board concluded that the Applicant had failed to establish his claim on any applicable ground. The Applicant did not demonstrate any basis or ground to challenge the legality, rationality, or fairness of such decision. In the circumstances of this case, the Court should not disturb 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).

Conclusion

7.  Accordingly, I make an order that the Leave Application be 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

Form CALL-1