MUHAMMAD ZAMAN alias HAFIZ v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 863/2020

[2025] HKCFI 4556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 863 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.  The Applicant’s Form 86 be amended to name the Non-Refoulement Claims Petition Office as the putative respondent;

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

Observations for the Applicant:

1.  By a Form 86 filed on 11 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 2 April 2020 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  Technically, the Board’s adjudicator only sat for the Petition Office but not as a member of the Torture Claims Appeal Board as the Applicant’s torture risk had been assessed in a different previous process and the Board’s Decision focussed on the Applicant’s risks of persecution and violation of Articles 2 and 3 of the Hong Kong Bill of Rights (respectively “BOR2” and “BOR3”).  On my own motion, I amend the putative respondent’s name to the Non-Refoulement Claims Petition Office; the reference to “the Board” in this decision should be understood that way.

3.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 27 September 2018.  The DI is a putative interested party to this application.

4.  The basis of the Applicant’s non-refoulement claim was that he commenced a relationship with a woman whose family disapproved of it and refused his request to marry her.  They however got married in 1995. They lived together for 12 years in different places in Pakistan following their marriage without any actual incident.  He had never been directly threatened or harmed by his wife’s family in Pakistan, even though life threats had been heard, his wife had been beaten by her family members before their marriage began and their son had also been assaulted by his wife’s nephew after his subsequent departure from Pakistan.

5.  The Applicant decided to leave Pakistan in 2007 after he saw a man in Mirpur whom he believed was his wife’s relative.  As he feared that his safety would be in jeopardy after this encounter, he arranged for his wife and children to reside with his father in Rasulpur and himself travelled to China in July 2007.  He illegally entered Hong Kong on about 15 July 2007 and has since remained here.  He had lodged a torture claim which was refused in 2012.  His non-refoulement claim was assessed on other applicable grounds under the unified screening mechanism (“USM”) after it came into place in around 2015.

6.  After an oral hearing, the Board under the USM believed the Applicant’s assertions and found him a reliable witness.  Based on the Applicant’s assertions, however, the Board came to the assessment that the Applicant was not subject to any real risk of being harmed or killed if he returned to Pakistan, and he was not under any well-founded fear of being persecuted.  His petition was therefore refused.

7.  In his Form 86, the Applicant complained that the Board’s Decision was substantially unfair, but no particulars have been given.  In the oral hearing before this Court, he first complained about the lack of fair treatment to him in Hong Kong by the Hospital Authority and the International Social Service etc., which I explained to him is not something the Court can handle in this application.  He then said when he was interviewed in Kowloon Bay (presumably by the DI’s officers), he once indicated “if you want me to go back, I can go back, I’ll not make any appeal”. He even went further to say he actually did not want to appeal/petition but the DI’s officer wanted him to do so and bring the matter to the Board.  He said he did not want to say anything in support of his present application to the Court; he has his passport with him and can go back to Pakistan or other countries. He said he only wanted justice.  But what is the Applicant’s meaning of justice, in the light of the background of his claim, has not been explained and does not appear to me to be explicable.

8.  I am unable to discern what unfair treatment the Applicant had received from the Board.  Looking at the Board’s Decision objectively and anxiously, I am also unable to detect what matters of procedural unfairness may be alleged or argued.  

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  In the light of the Applicant’s oral submissions, it is also obvious no meaningful public law relief can possibly be granted to him.

10.  I do not find the proposed judicial review reasonably arguable.  The leave application is thus 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