Ahmad Aqeel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2080/2019 on BabelCite. This High Court CFI judgment was delivered on 21 February 2025.
1. This is an application by Mr Ahmad Aqeel (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 8 March 2019 (“2019 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 January 2017 (“2017 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection under Article 2 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 Claim”).
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HCAL 2080/2019 [2025] HKCFI 746 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2080 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observation for the Applicant: Introduction 1.This is an application by Mr Ahmad Aqeel (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 8 March 2019 (“2019 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 January 2017 (“2017 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection under Article 2 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 Claim”). Background of the Applicant 2.The Applicant is a Pakistani. He was born on 1 January 1976 in Rawalpindi, Pakistan. He worked as a hairdresser from 1999 to 2006/2007. The Claim 3.The Applicant claimed that his family had a land dispute with his four paternal uncles (“Uncles”) after his grandfather passed away in around 2007. According to the Applicant, Uncles were important and influential people and they were long-serving members of the political party, Pakistan Muslim League (N). 4.The Applicant claimed that Uncles targeted him and his brothers because of the land dispute. About a few days after the funeral of his grandfather, Uncles attacked the Applicant’s younger brother (“R”) and R’s wounds required stitches (“Assault Incident”). Upon learning about the attack on R, the Applicant asked six of his friends for assistance and they took revenge on Uncles by beating them up. 5.About six months after the Assault Incident, Uncles murdered R with the help of their neighbour (“M”). The murder was staged as a car accident (“Car Accident”). The Applicant managed to uncover the truth behind the Car Accident and lured M to a meeting. In the meeting, the Applicant and his friends beat up M and M confessed to planning the murder of R together with Uncles. However, M denied any involvement in the actual attack on R, stating that it was Uncles who caused the Car Accident. 6.The Applicant’s family then informed the police about the truth behind the Car Accident. On the next day, a group of men fired their pistols at the Applicant’s home. The Applicant, his father and his another brother (“A”) were present at that time and the gunmen shouted the names of the Applicant and A. The Applicant recognized the voices as belonging to Uncles, so he believed Uncles were the gunmen (“Shooting Incident”). The Applicant’s family made a police report about the Shooting Incident but nothing came out of it. 7.The Applicant’s family then split up and hid in different places. The Applicant hid in the home of his in-laws in around July 2011. He later learnt that Uncles were planning another attack on his family. The Applicant asked the local administrator for help, so local policemen in plainclothes were assigned to protect the Applicant’s family. The Applicant remained in the area near the family of his in-laws (i.e. around Chak 66 and Chak 67 ML, Multan Road, District Bakhar) until May 2012. 8.The Applicant was in constant fear for his life, so he started planning to leave Pakistan in May 2012. He went to Lahore staying with a friend for 20 odd days before leaving Pakistan on 19 June 2012. He entered Hong Kong illegally on 27 June 2012 after making stops in Thailand and Mainland China. After arriving in Hong Kong, the Applicant received threatening phone calls whereby the callers claimed that both the Applicant and A would be killed. 9.The Applicant claimed that he would be harmed or killed by Uncles if he were returned to Pakistan. Procedural history 10.The Applicant arrived in Hong Kong on 27 June 2012 illegally and was arrested by the police on the same day. By a written representation of 30 June 2012, the Applicant lodged a non-refoulement claim (“NRC”). 11.The Director assessed the NRC on the following grounds under the unified screening mechanism (“USM”), namely:
12.By a decision dated 30 July 2014 (“2014 DOI Decision”), the Director refused the NRC. The Applicant appealed against the 2014 DOI Decision to the Board (“2014 Appeal”). By a decision dated 29 June 2015 (“2015 Board Decision”), the Board dismissed the 2014 Appeal. The NRC was thus concluded. 13.By a letter dated 15 December 2016, the Director invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR, including BOR 2 (“BOR 2 risk”). 14.The Applicant did not submit any additional materials or facts on any other absolute and non-derogable rights under HKBOR, particularly the BOR 2 risk. The Director proceeded to assess the BOR 2 risk of the Applicant (i.e. the BOR 2 Claim) based on information submitted by the Applicant for the NRC. 15.By the 2017 DOI Decision, the Director rejected the BOR 2 Claim. The Applicant appealed against the 2017 DOI Decision to the Board (“2017 Appeal”). By the 2019 Board Decision, the Board rejected the 2017 Appeal and affirmed the 2017 DOI Decision. 16.On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2019 Board Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent. 17.Order 53 rule 4(1) of the Rules of the High Court provides that:
18.The 2019 Board Decision was issued on 8 March 2019. As such, the Applicant should have filed the Form 86 latest on 10 June 2019 (8 and 9 June 2019 being Saturday and Sunday respectively). The Form 86 was filed on 22 July 2019 and it was late. 19.No application for extension of time to file the Form 86 was made by the Applicant. 20.The Applicant was late for 42 days in filing the Form 86. This is a substantial delay. However, the Applicant has not applied for time extension to file the Form 86 nor attend the court hearing scheduled for 14 January 2025 (“Court Hearing”) to explain for the delay. No explanation had been provided by the Applicant in the Supporting Affirmation for his late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay. 21.For the sake of good order and completeness, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matter. The DOI Decisions 22.In the 2014 DOI Decision, the Director found that the alleged risks of serious harm or death from Uncles were far-fetched and that the Applicant was not at risk from Uncles upon his return. This is because the Applicant was never physically harmed by Uncles in the past and was able to get protection from local police when he was staying in Chak 67 ML. According to the Applicant, he was able to take revenge and beat up Uncles for injuring R. 23.The dispute between the Applicant and Uncles was solely a private land dispute which had nothing to do with any of the reasons referred to in Article 33 of the Refugees Convention. The Applicant’s feared ill-treatment did not fall within the definition of “persecution”. 24.No severe pain or suffering within the definition of “torture” under section 39U(1) of the Ordinance had ever been inflicted upon the Applicant which was indicative of small, if any, future risk of “torture” as defined. 25.There were no substantial grounds to believe that further actions (if any) by Uncles would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Pakistani government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary. 26.The Director further found that internal relocation would be viable. The Applicant might move to live in Karachi or Chak 67 ML (where he was able to stay peacefully for about 9 months). After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life. 27.For the above reasons set out in the 2014 DOI Decision, the Director rejected the NRC. 28.In the 2017 DOI Decision, the Director considered the BOR 2 Claim in the light of the assessment on the risk of the Applicant’s feared treatment materializing upon his return to Pakistan as set out in the 2014 DOI Decision. 29.The Director found that, based on the available evidence, the Applicant did not face any BOR 2 risk upon his return to Pakistan. The BOR 2 Claim was therefore rejected. The Board’s Decisions 30.In the 2015 Board Decision, the Board found that there were a number of discrepancies between the Applicant’s evidence in his earlier statements and the evidence given at the oral hearing before the Board. The Board set out its analysis of the Applicant’s evidence leading to the aforesaid finding in §§63-69 of the 2015 Board Decision. 31.The Applicant was never assaulted, tortured or punished. The Applicant’s alleged ill-treatment could not be described as “severe” punishment or “torture” as defined in section 37U of the Ordinance. The Board further found that the Applicant failed to show that he was at risk of being “severely harmed” or subjected to the BOR 3 risk should he be refouled back to Pakistan. 32.The Board was of the view that being threatened by Uncles over a land dispute did not come under any of the reasons specified in Article 33 of the Refugees Convention calling for non-refoulement protection. 33.The Board further found that state protection would be available to the Applicant upon his return. It observed that the Applicant was able to avail himself of state protection when he was staying with his in-laws. It also found that internal relocation to Rawalpindi or Lahore would be viable to the Applicant. 34.For the reasons stated in the 2015 Board Decision, the Board dismissed the 2014 Appeal and affirmed the 2014 DOI Decision. 35.The Board held an oral hearing for the 2017 Appeal on 21 January 2019. 36.The Board found that the Applicant’s oral evidence was inconsistent with his evidence supplied in the NRC and that the Applicant’s claims were implausible. The Board set out its analysis of the Applicant’s evidence leading to the aforesaid finding in §§30-33 of the 2019 Board Decision. 37.The Board further found that the rest of the Applicant’s family was able to live peacefully with his in-laws away from Uncles and that he would be able to live peacefully with them upon his return. It further found that state protection would be available to him upon his return. 38.The Board therefore dismissed the 2017 Appeal and affirm the 2017 DOI Decision. Legal principles applicable to judicial review 39.In a judicial review, the court does not step into the shoes of the decision makers. 40.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
41.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 42.In the Form 86, the Applicant did not put forward any grounds for his intended judicial review. 43.The Applicant failed to attend the Court Hearing despite a notice of hearing dated 18 December 2024 having been sent to him and not being returned. In fact, the Applicant had also failed to respond to another letter dated 30 August 2024 previously sent to him by the court inviting him to provide information and submissions in respect of his application for leave for judicial review. As such, I proceeded to deal with this application according to papers already placed before the court. 44.In the Supporting Affirmation, the Applicant only stated that: “I am not agree the decision of (TCAB) and Immigration department. I want to file (JR) against them because I cant [sic] go back my country my life in danger there.” In the Form 86, the Applicant specified that the 2019 Board Decision was the subject decision for his application. The Applicant produced no supporting documents to the Supporting Affirmation. 45.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not attend the Court Hearing nor provide any particulars or specifics in the Form 86 and/or the Supporting Affirmation as to how the Board had erred in the 2019 Board Decision in affirming the 2017 DOI Decision, or in what way was the 2019 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 46.Having rigorously examined the 2019 Board Decision and the 2017 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the BOR 2 Claim; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 47.The Board did not accept that the Applicant faced any risk of being seriously harmed or killed by Uncles upon his return. Effective state protection would be available to him and internal relocation viable. 48.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2019 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable. Conclusion 49.The From 86 was filed out of time without leave from the court and having considered the 2019 Board Decision and the 2017 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 2 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 21st day of February 2025.
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
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