AHMED NAVEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3573/2019

[2025] HKCFI 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3573 of 2019

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.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 2 December 2019, the Applicant applies 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 29 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 22 August 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming the Director rather than the Board as the proposed interested party.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by his suppliers in Pakistan, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues at hand. I am satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

5.  After going through all the evidence adduced by the Applicant and applying the relevant law, the Board considered it evident that there were significant inconsistencies in relation to the important aspects of the Applicant’s claims, including whether he had borrowed money or purchased goods and was unable to repay money to the suppliers for the goods; when he had commenced his involvement in the business; from where he had purchased the goods; when the attack occurred; the length of his hospitalization; and the time he had spent hiding, etc. The Board also found that several other aspects of his evidence were problematic, and were indicative of the fact that he had not left Pakistan for the reasons put forward by him.

6.  The Board was therefore not satisfied that any of the Applicant’s claims were true and concluded that they were entirely manufactured by him. The Board reached the following conclusions:

(1)  The Applicant had not claimed that there was a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan, and there was no credible evidence to support any such conclusion. The Board did not accept any of the Applicant’s claims. In any event, the Board was not satisfied that there was any evidence to suggest that the Applicant was subjected to torture, nor were there substantial grounds for believing that he would be in such danger if removed (see §§57-61 of the Board’s Decision).

(2)  As the Board did not accept the truthfulness of the Applicant’s claims, it did not accept he was sought or harmed by his suppliers. Furthermore, the Board was not satisfied, based on the evidence, that there were substantial or strong grounds for believing that there was a real risk that the Applicant would be subject to torture or CIDTP in Pakistan from his suppliers (see §§62-65 of the Board’s Decision).

(3)  The Board was not satisfied that the Applicant’s claims engaged BOR 2, and did not believe that the Applicant would suffer death penalty, arbitrary deprivation of life or genocide based on his inability to repay (see §§66-68 of the Board’s Decision).

(4)  The Board was not satisfied that there was a real chance or risk that the Applicant would suffer harm amounting to persecution upon his return to Pakistan. Therefore, it concluded that the Applicant did not have a well-founded fear of persecution if he was removed (see §§69-73 of the Board’s Decision).

7.  The assessment of evidence, COI materials, risks of harm, state protection and viability of internal relocation, etc. was primarily within the province of the Board. It was entitled to make evaluations based on the evidence available and to decide the individual weight to be given to them. It is well-established that 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; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.)

8.  In this case, the Applicant has not shown any error of law, procedural unfairness, or irrationality in the Board’s Decision. I am not satisfied that the Applicant’s intended challenge of it is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

9.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be 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