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

HCAL 280/2021

[2026] HKCFI 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 280 of 2021

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.

1.  The Form 86 be amended on the Court’s own motion; and

2.  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 4 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 29 November 2019.

2.  Upon the Court’s enquiry, the Board has not made any decision relating to the Applicant dated 29 November 2019, but has made one in respect of him and in the non‑refoulement context dated 18 January 2021, dismissing his appeal against the decision of the Director of Immigration in his Notice of Decision dated 29 November 2019 refusing his claim for non‑refoulement protection. Piecing these information together, it is obvious that the Applicant’s intention was to seek judicial review of this decision. Probably, some unqualified people who assisted him in filling in the Form 86 made some mistakes about the date of the Board’s decision in respect of which relief is intended to be sought. Giving him the benefit of doubt, the Court amended his Form 86 by making the Board’s decision dated 18 January 2021 (the “Decision”) the decision in respect of which relief is sought, even though if the leave application in respect of that Decision were to be made today, it would have been years out of time. Then the Court stood down the hearing and had the Decision explained to the Applicant by the interpreter and allowed him time to consider his application before resuming the hearing.

The Applicant’s claim

3.  The Applicant is a Pakistani national, now aged 33. His personal background, the factual background leading to the present application, the basis of his claim, 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. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims he will be harmed or killed by a land mafia associated with the Pakistan Tehreek-e-Insaf political party (the “PTI”) because of a land dispute.

4.  The Applicant’s case is that his father, uncles and cousins had bought a piece of land which is registered in his father’s cousin’s name. One day in 2006, a land mafia and twenty other people turned up on the land and demanded the Applicant’s father and uncles leave. They fired at their home and drove them out of the land. The Applicant’s father and his cousin attempted to report to the police, but nothing happened. His father decided to leave the land and moved to Dandi Nizam Village.

5.  After four years, the Pakistan People’s Party (the “PPP”) displaced the PTI as the ruling party. The Applicant returned to work on the land. After about two months, the land mafia and his men turned up and told them to stop working on the land.  The Applicant ignored their demand. After a few more months, the land mafia and his men returned with a tractor, destroyed their crops and assaulted them. Again, the police failed to assist. After staying for another two months, the Applicant’s family moved to Sherai Alamighir.

6.  The Applicant and his family returned to their village in 2013. In November 2013, they were attacked by the land mafia and his men. The Applicant believed that the land mafia had bribed the police. The Applicant’s father, his two uncles and his father’s cousin were arrested. They were granted bail after one month. Upon their release from bail, they moved to Sherai Alamghir.

7.  The land mafia’s men came to Sherai Alamighir to harass the Applicant’s family and demanded that they transfer the land to the land mafia. They also threatened to kill the Applicant and his father’s cousin if they did not. In May 2019, the Applicant fled to Hong Kong.

The Board’s finding

8.  The Board found part of the Applicant’s case and evidence are credible but other parts were infected by exaggeration or embellishment. Overall, it had doubts in his evidence and rejected his claim. It accepted on the basis of country of origin (“COI”) that land disputes are not uncommon in Pakistan and that the Applicant’s father, his uncle and his father’s cousins are registered owners of the land. It did not accept his proportion that the land mafia had intention to seriously harm or kill the Applicant as that would not advance the land mafia’s objective to gain ownership of the land. Notwithstanding that the Applicant and his family were dispossessed of the land in 2006, they returned to work on the land four years later. Again, they were evicted. In 2013, they resumed occupation and farming on the land. The Board found they would not have so returned if they were genuinely in fear of serious harm or death by doing so. The land mafia and his men had many opportunities to harm or kill the Applicant, but did not do so. They only fired into the air. The Board also found the land mafia’s alleged association with the PTI unsupported by any credible evidence. It rejected the Applicant’s claim about the false charge and First Information Report (“FIR”) against him as unreliable and unauthentic. In conclusion, the Board found there is no substantial ground to believe the Applicant faced a real risk of serious harm or death from the land mafia or from anyone, should he return to Pakistan.   

9.  The Board also found the Applicant’s family was able to relocate without serious harm. It found there are viable alternative locations where the Applicant could relocate to avoid any contact with the land mafia and that it would not be unduly harsh to expect him to so relocate. It rejected his claim that the land mafia could locate him anywhere in Pakistan as far-fetched and fanciful.

10.  Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant had failed to establish sufficient factual basis to support his claim for protection under any of the applicable grounds under the United Screening Mechanism (the “USM”). Hence, it dismissed his appeal.

The legal principles applicable to judicial review

11.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  The Applicant had not advanced any ground of review in his Form 86. In his supporting affirmation, he reiterated his dissatisfaction with the Decision. At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision. He said that there are lots of issues in the Decision and whatever he need to say had already been mentioned in the Decision. He asked for a reconsideration of the Decision. A judicial review is not a re-trial. This Court has no power to reconsider his claim afresh. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.

Overall scrutiny

13.  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 and tested it against common sense, inherent probability and the country of origin information.

14.  The Board found the Applicant not a credible witness and disbelieved him on the crucial issues of his case. It found the FIR did not refer to him and rejected his evidence that a false charge had been laid against him. It found on the basis of his evidence that the land mafia had no intention to kill him and there is no substantial ground to believe the Applicant faced a real risk of serious harm or death from the land mafia or from anyone, should he return to Pakistan. It found on the basis the COI and his own background that he could, just as his family members did, relocate to other cities in Pakistan to avoid the risk of harm, if it should turn real. Then, applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as these 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

15.  For the above reasons, the Applicant’s application for leave to apply for judicial review as amended 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