SHAH TABEER HUSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2874/2019

[2025] HKCFI 1890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2874 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision^[1], which expired on 10 January 2018. His application was filed on 30 September 2019, which is late for more than 1 year and 9 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 9 April 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 43, is a national of Pakistan. He was arrested by police on 2 June 2009 and was referred to the Immigration Department. He was charged with the offences of using another person’s identity card and working in Hong Kong without the Director’s permission. He was convicted and sentenced to 12 months’ imprisonment. He lodged his non-refoulement claim by written representation dated 4 June 2009 on the basis that, if refouled, (i) he will be harmed or killed by Haifri and Isfaq of the Sipath-e-Salhaba group (“SS”) of Sunni sect because of a land dispute over the right to use a path owned by SS to a mosque in his village (“the said path”); and (ii) the Pakistani police will arrest and torture him for committing robberies and involving in terrorist activities in the Sunni area.

5.  According to the applicant, he joined Afwaj-e-Hussaini (“AH”) which is the main religious group of the Shia sect in his area. In 2008, he took 100 AH members to go to the mosque, practicing flagellation on their way, through the said path. They came across 50 people belonging to SS, including Haifri and Isfaq, who blocked their way. There was a fight between them. He was injured on his left eye, his chin and his 2 fingers, which were broken. He had to receive medication and remain in hospital for 2 days. The SS people had also made a complaint to police, accusing him of committing robberies and involving in terrorist activities. A warrant had been issued against him. He had to move around in order to avoid the police. On 23 May 2009, he left Pakistan for China. On 2 June 2009, he came to Hong Kong illegally by boat.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 October 2014 (“the Director’s 1^st Decision”) on Torture risk, BOR 3 risk and Persecution risk. There was a Notice of Further Decision dated 10 May 2017 on BOR 2 risk (“the Director’s 2^nd Decision”), collectively called the Director’s Decisions.

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  The Director refused the applicant’s claim for the reasons: (i) the absence or low frequency of past ill-treatment from his enemies is indicative of a small risk of harm upon his return to Pakistan; (ii) state protection will be available; and (iii) internal relocation is viable. [16]-[35]

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board. On 16 November 2015, the Board conducted an oral hearing.

10.  Having considered the evidence, the Board dismissed his appeal and confirmed the Director’s Decisions for the reasons below.

(1) The applicant’s evidence was incredible and there was no probable truth in his story about his assault, false allegations made against him or persecuted for the fact that he was an AH president. [61]

(2) The Board did not accept that he had been charged with robbery and involvement in terrorist activities. [62]

(3) Internal relocation is a viable option for him. [64]

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 30 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant has raised a jumble of grounds, which I shall summarize below.

(1) No reasonable basis to reject his credibility.

(2) Failure to consider state acquiescence.

(3) Failure to consider the country of origin information (“COI”).

(4) Irregularity – different decision-maker.

(5) Irrationality – failure to place weight on relevant information, but place weight on irrelevant information; failure to consider state protection in Pakistan; failure to consider human rights in Pakistan; failure to call psychological or psychiatric reports; applying the wrong standard of proof; no proper basis to consider relocation.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  Those grounds raised under paragraph 12 are the applicant’s bare assertions or personal opinions without any evidence in support. The only point that requires further consideration is the issue of different decision-maker. This is an appeal from the Director Decision to the Board. The Board must be another adjudicator of the facts of the case. This is for fair and just disposition of the appeal and nothing is amiss.

17.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.