ABBAS SYED SHUJAHAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 536/2021

[2026] HKCFI 3231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 536 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;

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 16 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 March 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

Background

2.  The Applicant is a Pakistani national, now aged 31. He was arrested by the police on 15 March 2016. He claimed to have sneaked into Hong Kong from Mainland China on 1 March 2016. He lodged a non-refoulement claim. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, 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. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims, if returned to Pakistan, he will be harmed or killed by members of the Sipah-e-Sahaba group (the “Sipah”) uncle because of political enmity.

4.  His case as stated in his non-refoulement claim form (“NCF”) is as follows. He belongs to the Shia sect of Islam since birth. On the tenth day of the Muharram in 2013 (ie 15 November 2013) he and his Shia sect members started a rally (the “2013 rally”) which was attended by five to six thousand participants. As the rally proceeded past a Sipah mosque, the Sipah people used abusive language against them and threw stones at them. A group of men snatched guns from the police and began firing at the rally. Some people set part of the Sipah mosque on fire. People started to run. The Applicant and his friends escaped. He was hit by a stone on his head and bled. He was taken to Hassan Clinic by his friend on motorcycle. The journey took one hour. He had his wound stitched up. He was given painkillers to ease the pain on his right arm. He learned that the army subsequently arrived to control the scene. A curfew was imposed for two days. At least eight people died and over eighty people were injured during the incident.

5.  A month after the 2013 rally, six Sipah men went to his home to look for him. They were armed with AK 47 riffles, pistols and dagger. He was not at home. His mother told the Sipah men that the Applicant was no longer living there. They did not harm his mother but threatened her saying that they would give the Applicant a big lesson if they ever saw him again. The Applicant believed he must have identified in the footage and tracked down.

6.  To allay his mother’s concern, he moved to live with his old school friend in Mandra about 40 minutes ride away by local transport. One evening after the first three months’ stay in Mandra, he was attacked on the street by two strangers. He was saved by two passers-by. Before leaving, the assailants threatened to kill him if they saw him again. He did not seek medical treatment for his injuries as there were no bleeding or report the incident to the police. Then, he moved to live with his cousin in Rawalpindi until mid-2014. There he learned from his cousin’s friend about availability of protection in Hong Kong. He left Pakistan on 28 January 2016 for Guangzhou. Then, he sneaked into Hong Kong from Shenzhen. While he is in Hong Kong, he was told by his mother that the Sipah men are still looking for him.

The finding of the Board

7.  The Board found the Applicant’s account set out in the NCF lacking in detail, inconsistent with his account in other settings without possible explanation or simply defy logic. For example, the Board accepted the medical note that the Applicant had been injured and was treated on 15 November 2013, but was not convinced that the injuries were occasioned by his participation in the 2013 rally. This is because the Board found his evidence that he took an hour to go to the clinic on motorcycle irreconcilable with information from Google Maps that the distance from the scene to the clinic was only six minutes on motor transport or 15 minutes on foot. He was unable to give a precise account of the time, date and circumstances surrounding the alleged visit by the Sipah men to his home. The Board could find nothing in his account which supports his conclusion that the two assailants in Mandra were men from the Sipah group. By reason of the cumulative effect of its assessment of the credibility of the Applicant’s account, it found the centrepiece of his story cannot stand. The Board accepted the Applicant’s personal background, the injuries he suffered on 15 November 2013 but not the cause of the injuries, what happened in the 2013 rally but not including the Applicant’s participation, and his departure from Pakistan on 28 January 2016. It did not accept he was physically present at the 2013 rally, which was the most significant basis of the centrepiece of his account.

8.  The Board found on the basis of authoritative and credible country of origin information (“COI”) that Pakistan is willing and able to offer effective protection to Shia Muslims. It appears that the Applicant has avenues to seek protection from the Pakistani government. It also found the Applicant could avoid the risk of harm from his enemies by internal relocation and that it would not be unduly harsh to expect him to relocate to, say, Karachi should he find it uncomfortable to stay at his home area. The Board was not satisfied that the Applicant had established his account as to why he came to Hong Kong or his alleged enmity with the Sipah group.

9.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to demonstrate substantial grounds for believing that he would be in danger of any proscribed harm upon his return to Pakistan. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

10.  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[6].

Grounds for judicial review

11.  At the hearing, after the legal principles in the preceding section were explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality. He reiterated that his life would be at risk for religious ground, if he is returned to Pakistan. This is in effect a direct challenge of the Board’s finding of fact that he had failed to demonstrate substantial grounds for believing that he would be in danger of any proscribed harm upon his return to Pakistan. That is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision. The Court will revisit these issues in its overall scrutiny of the Board’s Decision.

Overall scrutiny

12.  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.

13.  The Board analysed the evidence carefully, tested it against common sense, the COI and inherent probability. For reasons as stated in paragraph 7, it found the Applicant’s account not credible. It accepted the evidence of his personal background, the injuries he suffered on 15 November 2013 but not the cause of the injuries, what happened in the 2013 rally but not including the Applicant’s participation, and his departure from Pakistan on 28 January 2016; but did not accept he was physically present at the 2013 rally. It did not accept that the Applicant would face any real risk of being subjected to proscribed harm upon his return to Pakistan. Applying the law applicable to non-refoulement protection to the facts it found, it came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. It gave reasons for its finding. Its findings are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. 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 had 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

14.  For the above reasons, the Applicant’s leave application 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