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

HCAL 2418/2019

[2025] HKCFI 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2418 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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 21 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 April 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 July 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 2 January 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of Pakistan. The applicant’s case was that he sneaked into Hong Kong on 5 January 2016, and surrendered to the Immigration Department on 11 January 2016. On 22 June 2016, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by a man named (1) Noor Khan because the applicant did not appear at the Court as a witness against a man named Iqbal; and (2) Iqbal, who was involved in a shooting incident and the applicant was a potential witness to testify against him.

5.  The applicant claimed that Noor and Arshad Khan were brothers who were leaders of a political party called Pakistan Muslim League (“PML”). They employed the applicant as the gardener. In April 2015, the Khan brothers and their supporters had a confrontation with another party, Pakistan Tehreek-e-Insaf Party (“PTI”). During the event, the applicant witnessed Iqbal of PTI having shot at Arshad and his worker, both whom died from the gun shots. The applicant gave a statement to the police and continued to work for the Khan family. He had promised Noor to be the witness at court against Iqbal.

6.  Since then, the applicant and her mother were repeatedly threatened by the PTI people who came to the applicant’s home with pistols. In some incidents, they even tortured the applicant’s mother and fractured her leg that required hospitalization. In the beginning of November, after the applicant’s mother was discharged from hospital, the applicant’s family left their home and moved to another district. The applicant also left Pakistan in order to avoid the PTI people and also Noor who had been trying to locate his whereabouts.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low as the applicant had not experienced any direct physical harm from either Noor or Iqbal, the alleged risk of harm arising from the dispute was far-fetched, and there was no evidence suggesting that the government or public officials were involved. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  On 25 March 2019, the applicant attended a hearing before the Board. The applicant adopted all the information contained in the hearing bundle and confirmed that they were all true and correct. The Board also clarified certain matters with the applicant. The applicant confirmed that Iqbal was arrested and was facing a trial for murder. He also confirmed that Noor was a leader of PML and was a powerful man. The applicant stated that he asked Noor for protection but was not provided with any. In the Board’s Decision, the Board doubted the applicant’s truthfulness, and found there was no basis for his asserted fear. It found that the Iqbal’s trial was in December 2015. At the time of the hearing before the Board, it was already 2019. The Board believed that it would have been conducted without the applicant’s evidence. In any event, the Board found that the police should be able to offer protection to the applicant as Iqbal was arrested and brought to court. The Board also found that it would not be unreasonable or unduly harsh for the applicant to live elsewhere. The option of internal relocation could effectively eliminate his claimed risk of harm. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: 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.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and a hand written letter listing out the relief sought and his grounds for the intended challenge. The applicant set out 6 reasons in support of the Leave Application. They can be summarized as follows:

a.  He had a big problem with two political parties and was a witness of a murder case;

b.  The Immigration Department gave him a big bundle in English but he could not read or write English;

c.  The preparation time was very short; and

d.  The translation of interpreter was not good.

11.  Having regard to the above grounds, this court therefore firstly confirmed with the applicant if he could understand the interpreter well, and he answered in the affirmative. I also told him that he could have as much time as he wanted at the hearing to elaborate his grounds and to make submissions. The applicant only stated that his life would be in danger in Pakistan as they (meaning Noor and Iqbal) would kill him. He even stated that they had killed his father. He believed that had he remained in Pakistan, they would also have killed him as well. This court asked the applicant to tell this court what mistakes or errors the Board had made, the applicant said the hearing was some time ago and he could not remember. After this court refreshed his memory by telling him the grounds contained in his affirmation, the applicant was still unable to give any elaboration.

12.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The applicant’s grounds are bare assertions. It is clear that at the hearing before the Board, the Board had provided sufficient time and opportunity to the applicant to clarify matters. As for the applicant’s complaints on the lack of language assistance, the applicant was able to provide court documents in English and there was nothing to suggest that the applicant suffered any real prejudice from the alleged lack of language assistance. The contentions in relation to the interpretation at the hearing is without any supporting evidence or basis.

13.  The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail. It found that the applicant’s account did not amount to any threat or risk and that even if there were any threats, the applicant would have the option of state protection and internal relocation. These are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  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