Ajaz Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2259/2019

[2025] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2259 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 18 February 2019. His application was filed on 7 August 2019, which is late for more than 5 months. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 13 January 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 53, is a Pakistani. He entered Hong Kong illegally on 6 September 2013 and was arrested by the police on 27 October 2013. The applicant made a non-refoulement claim 2 November 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by members from Pakistan Muslim League (Nawaz) (“PML(N)”). On 5 April 2016, the applicant was arrested by the police for taking up employment illegally and was sentenced to imprisonment of 15 months on 29 April 2016.

5.According to the applicant, he became an active supporter of Pakistan Peoples Party (“PPP”) since 2012. One day in 2013, when the applicant and his friends were on their way to participate in a PPP rally, they were assaulted by a group of PML(N) members after declining to join their party. There were also shots fired into the air during the process. In mid-May 2013, the applicant was threatened while involving in a heated argument with PML(N) supporters. A month later, some PML(N) members fired shots at the applicant when he was on a motorcycle with his friend, but failed to hit him. Thereafter, the applicant relocated elsewhere as he feared about his safety. Eventually, he left Pakistan on 22 August 2013 and then sneaked into Hong Kong from Shenzhen on 6 September 2013.

6.The applicant had maintained contact with his family since arriving in Hong Kong. He was informed that his brother and sister were beaten up by PML(N) members because they failed to reveal his whereabouts. The applicant was of the view that he could not seek protection from the police because they were corrupt and were under the influence of the ruling PML(N). He also considered internal relocation not viable because PML(N) members could utilise their extensive network to find him.

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 6 January 2017 (“the Director’s Decision”).

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Pakistan [14.1]; (ii) the applicant’s claimed fear from PML(N) members was merely a speculation and there was no evidence that they had the means to track him down all over the country [14.2]-[14.3]; (iii) state protection would be available and there was no indication that the applicant was of adverse interest to the Pakistani authorities [15] and (iv) internal relocation would be viable [16].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. Although there was delay in the filing of the Notice of Appeal/Petition, the Board accepted the late filing given that the applicant was imprisoned at the material time [7]. On 20 July 2017, the Board conducted an oral hearing.

11.The Board noted that the oral testimony given by the applicant at the hearing was fundamentally at odds with his previous evidence, in which he was confused between the party he supported and the party he feared harm from. Such divergence indicated that his claims were fabricated. The applicant’s ignorance of general election times in Pakistan and his lack of knowledge about the name of his party leader further damaged his credibility [59]-[64].

12.Based on such findings, the Board concluded that the applicant would not face a real risk of harm upon return to Pakistan and rejected his claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [43]-[56], [70]-[73]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decisions.

DISCUSSION

15.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.For the reasons the Board has given above, the Board found that the applicant had fabricated his story and he will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

19.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.