ALAM MEHRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 667/2017

[2025] HKCFI 3224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 667 of 2017

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 22 September 2017 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 25 August 2017 dismissing his appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection. 

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing. Accordingly, the Court proceeded to make the following determination.

The Applicant’s case

3.  The Applicant is a Pakistani national, now aged 33.  He was arrested on 30 November 2013 as a suspected illegal immigrant.  He claimed he left Pakistan and arrived in Mainland China on 27 November 2013 and then sneaked into Hong Kong on the same day of his arrest.  He lodged his application for non-refoulement protection on 4 December 2013.  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]. It was rejected by the Director’s Notice of Decision (the “Notice”).  His appeal against the Notice was dismissed by the Decision of the Board.  He now seeks leave to apply for judicial review of that Decision.

4.  The gist of the Applicant’s claim is that if refouled, he would be at risk of being harmed or killed by Azam who disapproved the Applicant’s relationship with his daughter.  Azam is a rich property dealer.  He is also the brother-in-law of his mother.  His and Azam’s family had long-standing grudges and enmity.  However, he developed a secret love affair with Azam’s daughter and they planned to get married.  Being Sunni Muslims, Azam and his family members had restrictions on freedom of marriage.  Azam learned about their relationship in 2012 and disapproved.  He arranged for his daughter to marry her cousin, forbade her to leave home and suspended her from school.  He also threatened to kill the Applicant if he continued to contact his daughter.

5.  The Applicant reported the threat to the police.  After questioning him about the threat and speaking with Azam who denied the threat, the police officers told him to leave.  The Applicant believed the officers were biased in favour of Azam because he was rich.  Since then, the Applicant lost contact with Azam’s daughter.  One day, he heard that Azam’s daughter had died.  He had no detail of her death.  He suspected that she had either been killed by Azam or had committed suicide.  Believing that Azam would definitely go after him, he fled to Rawalpindi where he worked as a waiter.

6.  One night in early 2013, he was woken by people knocking on the door. He saw two men outside carrying something like bamboo sticks and pistols.  He believed one of them was Azam or that they were sent by Azam to kill him.  He therefore fled from the back door. 

7.  He moved to Karachi and worked as a salesman.  One day, he was intercepted by two men on a motorcycle.  They beat him for about seven minutes until some passers-by came to the scene.  He believed the two men were sent by Azam to kill him.

8.  He believed the police would not help him because they are corrupt.  He could not relocate anywhere in Pakistan because Azam could find him out. Eventually, his father arranged for him to leave Pakistan for Mainland China on 26 November 2013.  He maintained contact with his father.  His father told him that Azam knew he is in Hong Kong because he has people from his home village in Hong Kong and that Azam would definitely kill him.

The finding of the Board

9.  The Applicant appeared before the Board.  He confirmed the truth and correctness of his evidence in the hearing bundle and adopted them as his evidence.  Despite having been informed that the Board had concerns about his evidence, the Applicant refused to testify.  The Board found his evidence vague and lacking in particulars and that the centrepiece of his claim was based solely on hearsay and speculation.  He did not know the reason of the grudge and enmity between his and Azam’s families, despite he called it a long-standing one.  He did not know when Azam’s daughter died or if she had actually died.  Without confirming her death, he jumped to the conclusion that his life was at risk and fled to Rawalpindi.  He did not remember the month and date of the visit by the two men in Rawalpindi and the assault by the two men in Karachi.  The Board found his evidence unreliable and incredible.  It came to the conclusion that the Applicant was not credible and rejected his evidence.  It found he had not been threatened or assaulted by Azam and that there was no real chance that he would be harmed, ill-treated or killed by Azam.  The Applicant had failed to establish the factual basis to support his claim for non-refoulement protection.

10.  Even putting those factual finding aside, the Board found the Applicant’s evidence does not entitle him to non-refoulement protection as a matter of law.  His evidence, even if accepted, only showed that Azam was acting in his personal and private capacity when threatening or ill-treating him.  His evidence did not show that the harm or ill-treatment attained the minimum level of severity, or that they arose on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

11.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

12.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he annexed a five-page document titled “The Ground For the Application”.  It quoted some legal principles, authorities, and provisions under some conventions.  Such quotations cannot constitute any grounds of application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

13.  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.  The Board had concerns about certain aspects of the Applicant’s evidence.  It brought those concerns to the Applicant’s attention but the Applicant chose not to testify and ease the Board’s concerns.  The Board could only assess his claim on the evidence before the Board. 

14.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It found the Applicant an incredible witness. It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are finding of fact solely for the Board.  That finding of fact must necessarily be fatal.  However, the Board went further. It found on the basis of authoritative and credible country of origin information that reasonable state protection is available.  It also found as a matter of law that the Applicant’s evidence could not support his claim for non-refoulement protection.  These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 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

15.  For the above reasons, the leave application 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