ATIF MEHMOOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 539/2020

[2025] HKCFI 3578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 539 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 4 December 2019”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 7 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “decision made by (Fisher Paul Stephen) 4-12-2019”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 4 December 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 December 2018 (“the Director’s Decision”). The applicant confirmed at the oral hearing before this court on 15 July 2025 that he was applying for leave to apply for judicial review in respect of the Board’s Decision. Thus, it is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000539_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

4.  The applicant had previously made a torture claim and his claim was rejected by the Director on 6 June 2013. The Board refused his appeal against the Director’s decision on his torture claim on 22 April 2014. Thus, his Torture Risk had already been assessed and finally determined.

Amendments

5.  In Form 86, the applicant named both Torture Claims Appeal Board and Director of Immigration as the proposed respondents but did not name any putative interested party, when the putative respondent should only be the Board and the putative interested party should be the Director.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is so amended.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection because he feared that if he returned to Pakistan, his life would be in danger from his political opponents, namely people from the Pakistan People’s Party (“PPP”), as he was a street counsellor of the Pakistan Muslim League (“PML”). He also made a new claim to the Board that he feared harm from the ruling party, the Pakistan Tehreek-e-Insaaf (“PTI”), as PTI was also an opposition party to PML.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed Form 86 on 7 April 2020, which was more than 4 months after the Board’s Decision (made on 4 December 2019). The applicant was hence late for more than one month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

13.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court, the applicant merely explained the delay by saying that it was due to the Covid-19 pandemic at that time.

14.  The delay of more than 1 month is not very substantial, but, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application to pursue a hopeless judicial review, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 July 2025.

16.  At the oral hearing, the applicant said that he needed more time to prepare for the hearing as he was only notified about the hearing the day before. He also wanted to get some documents such as police reports and legal documents to support his claim.

17.  When this court invited the applicant to advance his grounds for the intended judicial review, the applicant only said that he wanted to add some more things but he could not say anything as he could not remember. He again asked for more time to prepare for the intended judicial review.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 7 April 2020.

20.  As aforementioned, the applicant only asked for more time to prepare for the hearing and to adduce further supporting documents. He failed to advance any ground to challenge the Board’s Decision at the oral hearing either.

Discussion

21.  First of all, the Leave Application was filed 7 April 2020, which was more than 5 years before the oral hearing. The applicant should have more than enough time to prepare for the hearing of his application and to secure any documents he intended to use to support his application. In any event, it was held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

22.  In fact, back at the time when the applicant completed the questionnaire setting out his claims in December 2012, the applicant was already using the same excuse that he needed more time to obtain supporting documents from the police station and the court in Pakistan. The applicant did not submit any of these documents to the Board, which heard his claims in October 2019.

23.  Thus, this court sees no good reason to afford the applicant any more time to locate the alleged documents.

24.  The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

25.  Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

26.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 28 October 2019 and the applicant was present. The applicant was therefore given the chance to present his case to the Board in person.

27.  The Board found the applicant’s claim that he became actively involved in politics for the first time in late 1999 unconvincing, given that he had already obtained a passport at that point and was, on his own account, planning on permanently migrating to England.

28.  The Board did not accept that the applicant was involved in any political activities in support of PML or PML-N, nor that he attracted the enmity of PPP members as claimed. The Board did not accept that the applicant or any of his family members had been targeted or harmed in the past on account of his claimed political involvement. The Board did not accept that he was attacked, threatened, kidnapped, or prosecuted for political reasons.

29.  The Board further found that the applicant was unable to explain why he would be harmed by PTI when PTI only came to power in 2018, and the applicant left Pakistan in 2002. The Board found that the applicant was simply tailoring his claims to suit his understanding of the political situation in Pakistan at any given time, to give the impression of being currently at risk regardless of who was in power.

30.  Moreover, key aspects of the applicant’s evidence relating to the consequences he and his family were said to have suffered because of his claimed political activities were contradicted by the account given by his brother Fahim, who also gave evidence before the same member of the Board in September 2019. When being challenged, the applicant chose not to respond and also failed to provide any logical rebuttal to the very obvious inferences to be drawn from it.

31.  The Board also noted that the applicant had repeatedly asked for time in the 7 years before the Board’s hearing to adduce evidence to support his claims but failed to do so. He again asked for time from the Board to do the same. The Board refused and concluded that it was only the applicant’s delaying tactic in an attempt to prolong his stay in Hong Kong rather than a reflection of his genuine effort on his part to gather actual evidence.

32.  The Board concluded that the applicant was not a witness of truth and rejected his claim in its entirety. The Board also concluded that the applicant did not face a real or substantial risk of torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or persecution if refouled to Pakistan.

33.  Thus, the applicant’s alleged danger to his life upon return to his home country had been duly considered but rejected by the Board.

34.  Although the Board did not consider state protection and internal relocation, it was unnecessary to do so as the applicant’s non-refoulement claim and the matters giving rise to his claim were rejected in their entirety.

35.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

36.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

37.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

38.  This court noticed that the adjudicator, Mr Paul Stephen Fisher, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

39.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

40.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Fisher was indeed a member of the Board and did have the power to determine the applicant’s petition.

41.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

42.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

43.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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