SAEED ASIF SHEZAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1718/2020

[2025] HKCFI 5364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1718 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 documents and Applicant being absent in open court

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party respectively.

(2)  No extension of time be granted and the application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 25 August 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of (i) the Director of Immigration (“the Director)’s decision dated 29 May 2018 (“the Director’s Decision”); and (ii) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 15 November 2020 (“the Board’s Decision”).

2.  It should be noted that the Applicant has misstated the date of the Board’s Decision. The Director’s Decision, which rejected the Applicant’s non-refoulement claim on all applicable grounds other than risk of torture, was affirmed by the Board on 15 November 2019. The sequence of events may be set out as follows:

(1)  The Applicant entered Hong Kong unlawfully and was arrested on 19 May 2009. He was subsequently referred to the Immigration Department on 21 May 2009. His original torture claims were made on 22 May 2009, and he lodged his TCF on 25 October 2013. The Applicant had the First Interview on 8 January 2014, following which his torture claims were rejected on 4 February 2014. He then advanced further claims and was interviewed again on 16 May 2018.

(2)  The Applicant’s non-refoulement claims under the USM were rejected by the Director on 29 May 2018, and were subsequently the subject of the appeal before the Board. The Applicant filed the appeal against the Director’s Decision for consideration by the Board on 8 June 2019. The Board, having duly considered the matter, reached its decision on 15 November 2019 (“the Board’s Decision”).

Background

3.  The Applicant’s personal background, together with the incidents alleged in support of his claim that he would be harmed or killed by his cousin, Shoaib in Pakistan owing to a political dispute between Shoaib and the Applicant’s family, were set out in detail in the Board’s Decision. The Board also recorded the relevant immigration and procedural history of this case as part of its determination. It is unnecessary to repeat them, and for completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  To being with, the Applicant’s intended application to challenge the Director’s Decision stands to be rejected, as it is misconceived in light of both the existence and implications of the two-tier system (see Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  Insofar as the Board’s Decision is concerned, the Applicant has taken out the Leave Application late under Order 53, rule 4 of the Rules of the High Court (Cap. 4A). Section 21K(6) of the High Court Ordinance (Cap. 4) empowers the Court to refuse leave or relief where an application has been unduly delayed, if granting such relief would likely cause substantial hardship, prejudice the rights of others, or be detrimental to good administration. For the reasons stated below, I decline to extend time for the Applicant, taking into account the relevant legal principles established in authorities including AW v Director of Immigration [2016] 2 HKC 393 and Re Thomas Lai [2014] 6 HKC 1.

6.  First, the Applicant has neither provided any explanation for the delay nor sought an extension.

7.  Most importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the Leave Application even if it had been brought within time.

8.  The Applicant was duly notified of the hearing before the Board and appeared with the assistance of an interpreter qualified in the Urdu and English languages. The Board had before it the hearing bundle relating to his case, including the TCF, the SCF, the First and Second Interviews, the Director’s Decision, the Notice of Appeal containing the grounds of appeal, and the COI from a variety of sources. The Board, as the primary decision-maker, undertook a full and comprehensive assessment of the evidence and risks, and made the following determinations within its remit, as is evident from the Board’s Decision:

(1)  The Board identified the determinative issues for consideration. It was aware of the Applicant’s non-refoulement claim, which was based on his alleged fear of harm from Shoaib, a member of the Pakistan People’s Party (PPP). However, the Board stated that it had a number of concerns in respect of the case, including the overall coherence of the Applicant’s claim. In fact, at the commencement of the hearing, the Board asked the Applicant why he had not provided any documents in support of his case, particularly in light of his earlier promise to do so in the TCF, prepared in 2013.

(2)  The Board observed that it failed to understand fully why Shoaib continued to display obsession with harming the Applicant. The Applicant, however, gave only a vague answer. The Board persisted with its questioning, seeking to elicit from the Applicant an explanation as to why Shoaib was so determined to harm him. The Board repeated the question three further times, yet the Applicant continued to respond with vague and unsatisfactory answers. The Board enumerated a number of further concerns relating to the evidence. Despite claiming that he could not return home because of Shoaib, the Applicant admitted that he had made no attempt to ascertain what Shoaib wanted or whether Shoaib would in fact seek to harm him. The relocation timeline advanced by the Applicant was inconsistent with his past claims. It was also difficult to understand how Shoaib could have tracked him down in Karachi within days, but not when he was much closer to home. The Applicant had also provided differing versions in the past about when he left the village and relocated within the country, as well as inconsistent accounts of events on his case.

(3)  The Board advised the Applicant that his claim might be rejected on credibility grounds. The Board was not required to accept uncritically all of the allegations made by the Applicant, nor was it obliged to accept claims that were inconsistent with independent evidence regarding the situation in the Applicant’s country. The Board formed the view that the Applicant was not a witness of truth and that he had fabricated aspects of his claims relating to Shoaib and PPP. The Board was not satisfied that the Applicant’s sole reason for not returning was his alleged fear of Shoaib. The Applicant had made no inquiries to establish what Shoaib’s intentions were, and there were also numerous inconsistencies in his case.

(4)  The Board found that the Applicant had never experienced any problem with Shoaib or any other relatives. Neither the Applicant nor members of his family had ever been asked to cast their votes for PPP. Shoaib did not abuse the Applicant or other family members verbally, nor did he issue threats against them. He did not insult the Applicant until after the Applicant decided to strike him. There were no physical altercations between the Applicant and Shoaib. The Applicant did not have to leave home or move from city to city in Pakistan in order to avoid Shoaib.

(5)  The Board also found, on the evidence, that the Applicant left his home in 2005, as stated in his employment history in the TCF. He went to work in Karachi, Lahore and Islamabad, as he conceded at the hearing, and was motivated by economic reasons. The Applicant’s brother was never kidnapped. The Applicant had nothing to report to the police, the village court, or the council. He did not have to leave the country in order to escape from Shoaib. Shoaib had not been harassing the Applicant’s family since the Applicant came to Hong Kong. The Applicant was not of any adverse interest to anybody in Pakistan.

(6)  Based on the gaps, inconsistencies, and other problems in the evidence, the Board rejected the Applicant’s claim, both individually and cumulatively, in its entirety. In light of its findings, the Board considered that there was no real risk that the Applicant would face any of the prescribed forms of harm. The Board found that the Applicant did not have a genuine or substantial risk of being subjected to mistreatment. He was not at any real risk of being subjected to torture or CIDTP so as to constitute a breach of BOR 3.

(7)  The Board further found that there was no real risk that the Applicant would arbitrarily be deprived of life, have the death penalty imposed upon him, or otherwise be deprived of his rights under BOR 2.

(8)  Having regard to the facts as found, the Board concluded that there was no real risk to the Applicant. Accordingly, the Applicant did not have any well-founded fear of persecution on any Convention grounds.

9.  Apart from expressing that he is not “satisfied” with the Board’s Decision and reiterating his alleged risk to life if returned, the Applicant has not identified or explained any matter of substance. Nor am I satisfied that any error of law, irrationality, or procedural unfairness has been established in relation to the decision of the Board. On the contrary, bearing in mind the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14), the Board’s determinations were made within the scope of its powers, following a careful and reasoned assessment of the relevant evidence within the applicable legal framework, which the Court should not interfere (see 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; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

10.  Finally, an extension of time for an unmeritorious application such as the present one would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process.

Conclusion

11.  In light of the foregoing, no extension of time is granted and the Leave Application is 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