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

HCAL 2282/2024

[2025] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2282 of 2024

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr. Raheem Muhammad Qasim (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 November 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 August 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Pakistani born on 30 July 1994. He resided in Thoha Bahadur, Chakwai, Punjab, Pakistan.

3.  The Applicant received 8 years of formal education and had around 5 years of experience working as a driver in Saudi Arabia from 2016 to 2021.

4.  The Applicant claimed that he was a supporter of the political party, Pakistan Tehreek-e-Insaf (“PTI”) since 2015. He was not a member of PTI and did not hold any official position within the party. Since the leader of PTI was arrested in May 2023, members and supporters of PTI had been targeted by PTI’s political rival, the Pakistan Muslim League (N) (“PML-N”).

5.  Sadar Ghulam Abbas, a PML-N politician and member of the National Assembly, sent 10 to 12 followers (“Sadar’s Men”) to harass and threaten PTI members and associates, including the Applicant.

6.  Sardar’s Men verbally assaulted the Applicant with obscene and aggressive language, demanded the Applicant to quit PTI and change his support to PML-N. Otherwise, they would inflict severe harm or even kill him.

7.  Fearing the threats, the Applicant fled to Karachi in June 2023 but still received threatening calls. Fearing for his safety, he left Pakistan in July 2023 for China. From China, he sneaked into Hong Kong on 4 April 2024. On 3 July 2024, he lodged the Claim.

8.  The Applicant claimed that he would be harmed or killed by Sadar’s Men if he returned to Pakistan.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 27 November 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the proposed interested party.

Legal principles applicable to judicial review

12.  In a judicial review, the court does not step into the shoes of the decision makers.

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; 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 and Re Masoom Parvez [2018] HKCA 163.”

14.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

15.  In the Form 86 filed on 27 November 2024, the Applicant annexed a statement setting out the grounds for his intended judicial review application as follows:

(a)  the DOI Decisions and the Board’s Decision were not reasonable and fair;

(b)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account;

(c)  the Director failed to consider or give enough weight to COI which supported the version that the police in his country would not be able to protect him and the corruption and incompetency of the administration in his country was still a very serious problem;

(d)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case and the Board failed to take into account the nexus of political parties and official corruption which existed in his country, making the persecution effectively persecution by the State;

(e)  the Board was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him and unreasonably required him to response to questions that he was not in a position to offer any response; and

(f)  the Board’s Decision was irrational in dismissing his appeal/petition.

16.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision without other supporting documents.

17.  The aforesaid grounds advanced by the Applicant in the Form 86 were without particulars. They were only bare assertions.

18.  In the Form 86, the Applicant raised various complaints against the decision of the Director. This is an application for leave for judicial review against the Board’s Decision, not the DOI Decision. Hearing before the Board for the Appeal was de novo. The Board had expressly pointed out in §15 of the Board’s Decision: “Although referred to as an Appeal/Petition, the nature of this Appeal/Petition is a reconsideration of all questions of fact and law.” Errors (if any) made by the Director in the DOI Decision will not constitute ground(s) for applying for judicial review against the Board’s Decision.

19.  The Board had set out the Applicant’s case, including his personal background and experience, in some details in §§1-11 and 36-45 of the Board’s Decision. The Board had taken into account the personal background and experience of the Applicant and carefully considered all relevant COI before reaching its decision of dismissing the Appeal. (See §§77-81 of the Board’s Decision)

20.  At the court hearing of 4 February 2025 (“Court Hearing”), I asked the Applicant to specify which parts of his personal background or experience had been overlooked by the Board. He was unable to identify any but reiterated that his life would still be in danger if he were to return to Pakistan. I see no merits in this proposed ground advanced by the Applicant.

21.  The Board had analyzed the Applicant’s evidence in some details in §§46-60 of the Board’s Decision and came to the conclusion that the Applicant was not a reliable witness and the Board could not rely on any of his statements as representing the truth. As there was no other evidence to support the Applicant’s fear, the Board found that there was no creditable threat against the Applicant if he was refouled to Pakistan.

22.  The Board did not overlook the issue of state acquiescence. See §§27, 79-81 of the Board’s Decision. However, the Board’s finding was that there was no creditable threat against the Applicant. As such, the issue of state acquiescence simply did not kick in.

23.  The Applicant provided no particulars nor supporting evidence to substantiate his complaint of the Board failing to adequately consider state acquiescence in his feared risk. Relying on this ground to seek judicial review has no merits.

24.  After considering the COI and all circumstances, the Board was of the view that internal relocation would be available to the Applicant in Pakistan. The Applicant’s proposed challenge to this finding of facts by the Director and/or the Board is not reasonably arguable.

25.  As pointed out in the Nupur Mst case (supra), assessment of evidence, risk of harm, viability of internal relocation, COI materials and state protection were primarily within the province of the Board and the Director. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings.

26.  The Applicant did not specify what inappropriate questions had been put to him by the Board. The Board had to put to the Applicant questions on all matters relating to the Claim causing concerns to the Board. If the Applicant was not in a position to respond to any of the questions, the Applicant could explain to the Board why he was unable to respond. No unfairness would be caused. In §18 of the Board’s Decision, the Board recorded that: “At the conclusion of the hearing, he [the Applicant] was asked if he had anything further to add to his Appeal/Petition. The [Applicant] stated that he had nothing further to add.” There were no records that the Applicant had raised any issue of inappropriate questions at the hearing before the Board. In the Court Hearing, I asked the Applicant to identify the inappropriate questions put to him by the Board at the hearing before the Board. The Applicant was unable to identify any. This ground is again not reasonably arguable.

27.  By a letter dated 13 December 2024 (“Letter”) sent to the court, the Applicant produced a copy of the DOI Decision and some COI materials extracted from the bundles for the hearing before the Board. These documents had previously been considered by the Director and the Board. They added nothing to the Applicant’s case.

28.  In the Court Hearing, the Applicant confirmed that he was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. He said that the media in Pakistan were under control of the ruling party and outsiders would not know the actual situation there. He reiterated that his life would still be in danger in Pakistan as his enemy was still in power.

29.  In disputing the findings on assessment on evidence, risk of harm, COI materials and viability of internal relocation, the Applicant seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

30.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

31.  I have rigorously examined the Board’s Decision with anxious scrutiny. I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

32.  The Board found that the Applicant gave different accounts of events at the oral hearing before the Board, which contradicted with his evidence before the Director. The Board found his evidence to be unreliable and there was nothing to show that he faced a credible threat upon his return. The Board further found that even if the events relied on by the Applicant were true, the proscribed risks were still not made out by the Applicant for reasons set out in §§66-76 of the Board’s Decision. Furthermore, the perceived risks could be mitigated by internal relocation.

33.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.

34.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

Conclusion

35.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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