ALI SHAFAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 829/2020

[2025] HKCFI 3254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 829 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 the documents and oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to add the DI as the putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 7 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 13 March 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 29 August 2018. The TCAB has been named as both the putative respondent and the putative interested party. I amended the Form 86 on my own motion so that the TCAB is only named as the putative respondent, whereas the DI is added as the putative interested party.

3.  The Applicant is a Pakistani national. He claimed to be the supporter of a political party called the Pakistan People’s Party. The Applicant’s non-refoulement claim was based on an alleged risk of being harmed or killed by members of the Pakistan Muslim League (Nawaz).

4.  The TCAB conducted an oral hearing for the Applicant to make representations and answer factual queries. During that hearing, the TCAB put to the Applicant that he had provided almost no detail on his political involvement and displayed no reasonable knowledge about politics in Pakistan, to which the Applicant could not provide any further information (paragraph 55 of the TCAB Decision). After assessing the evidence, the TCAB found the Applicant’s claim not credible; the TCAB even commented that the Applicant had hardly made any effort to establish any claim for serious consideration (paragraph 65 of the TCAB Decision). On that basis, the TCAB found that the Applicant would have no real risk of his rights under Articles 2 and 3 of the Hong Kong Bill of Rights (“BOR2/BOR3”) being violated if he was to return to Pakistan. The TCAB also found that he was not under any well-founded fear of persecution for one of the reasons under the Refugees Convention 1951, and there was no real risk that he would be killed, harmed or tortured by anyone upon State consent or acquiescence. In any event, the TCAB also assessed the Applicant as having a reasonable internal relocation alternative within Pakistan.

5.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application:

(a)  the TCAB has failed to properly apply paragraph 2 of the United Nation’s Committee against Torture General Comment No. 2, which required State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) to “conduct sufficient due diligence” to ensure that its reforms and means of relief have been “effective”. It was further said the TCAB had merely focused on whether the means of relief had shown signs of positive improvement, on which the case Re JKF (unreported, CACV 103/2014, 25 November 2014) was quoted;

(b)  the TCAB has failed to conduct sufficient inquiry into the relevant country of origin conditions;

(c)  the TCAB has failed to give sufficient reasons for its assessment on the Applicant’s BOR2 risk;

(d)  the TCAB has failed to take into account the psychological strain and threats to the Applicant personally and the threats to kill him directly;

(e)  the TCAB has failed to consider the Applicant’s still-existing fear of his enemies;

(f)  the TCAB has no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP.

6.  In the oral hearing before this Court, the Applicant said he had nothing to supplement the grounds stated in his affirmation.

7.  On ground (a), paragraph 2 of the aforesaid General Comment No. 2 is only a general statement of the State parties’ obligations under the Convention against Torture and CIDTP. In other parts of the General Comment, there are references to the requirement for State parties to exercise “due diligence” to prevent, investigate, prosecute and punish non-State actors’ acts of torture and adopt effective measures to achieve this purpose. However, the General Comment does not point to a specific legal approach which the TCAB as a tribunal deciding the Applicant’s non-refoulement claim must observe.

8.  As to the case of Re JKF cited, the Court of First Instance in that case held that even if ineffectiveness of the State machinery (of the country of original of a non-refoulement claimant) in preventing domestic violence were established, there would have been still no substantial ground for believing that the claimant would be in the danger of being subjected to torture. The Court of Appeal saw room for reasonable argument whether this general statement of the Court of First Instance was correct, and granted leave to judicial review to allow the statement to be canvassed fully in a substantive hearing.

9.  In my judgment, the aforesaid authorities on a State’s obligation to prevent and combat torture is irrelevant to the present case. The TCAB in this case held that the Applicant has no credible claim in the first place; no real risk of torture, violation of BOR2/BOR3 and persecution was found to exist in the Applicant’s situation. There was no finding that the State machinery of Pakistan was effective or ineffective, and the TCAB did not choose to focus on just positive improvement but ignore the “due diligence” requirement. Ground (a) is simply inapplicable to the Applicant’s challenge against the TCAB Decision.

10.  On ground (b), the TCAB did inquire into the country information of Pakistan when assessing whether the Applicant would be subject to any risks, e.g. the TCAB did make reference to information about the Pakistan general election in 2008 to assess if the Applicant was involved in Pakistan politics.

11.  In the DI’s tier-one decision dated 29 August 2018, the DI looked into specific country information of Pakistan in relation to the effectiveness of the Pakistani police (see its paragraph 20). The TCAB did not make an inquiry along the same line; it can be said actually the TCAB had not assessed whether the Pakistani police could alleviate any risk the Applicant might be subject to should he return to Pakistan, at all. However, the TCAB did not assess the effectiveness of Pakistani police because it found the Applicant having no credible claim and no risk in the first place. The fact that the TCAB did not further assess the effectiveness of the Pakistani police on an “even if there was any risk” basis does not raise any public law issue.

12.  Grounds (c)-(f) can be dealt with together. The TCAB has assessed the Applicant’s BOR2/CIDTP risk and fear etc.; sufficient reasons have also been given. The Applicant’s appeal/petition was dismissed because the factual foundation of his non-refoulement claim was not accepted. In view of the evidence recorded by the TCAB in the TCAB Decision, it was certainly a factual finding open to the TCAB. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the non-refoulement claims decision-makers including the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. 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).

13.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the evidence. I am unable to detect any error on the TCAB’s part. The leave application to apply for judicial review is thus 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