Kaleem Sheikh Alias Farooq Kaleem Alias Farooq Ahmad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2546/2019

[2025] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2546 of 2019

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;

Order by Deputy High Court Judge Reuden Lai:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application by Mr Kaleem Sheikh alias Farooq Kaleem alias Farooq Ahmad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 29 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 12 September 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.The Applicant is a Pakistani. He was born on 27 April 1969 in Punjab, Pakistan. He had received 10 years of education and had 19 years working experience.

3.The Applicant claimed that members of the Pakistan Muslim League (Nawaz) (“PMLN) and a group of local gangsters in Pakistan (together “Enemies”) wanted to harm or kill him because of his support for the political party Muttahida Qaumi Movement (“MQM”).

4.The Applicant claimed that he served as a general secretary for the MQM and he was attacked twice in 2015 by the PMLN supporters (“Attacks”). He was injured in the Attacks. He reported the first attack to the police but the police, having been bribed by the PMLN supporters, refused to help.

5.The Applicant claimed that the Pakistani police would only take actions if a bribe was paid. In a separate incident, he had been wrongly accused of a crime by the police and had to pay bribes to secure his release. Due to the lack of confidence of the Pakistani police and the threats from the Enemies, he fled to Kharian and Punjab of Pakistan with the assistance of his relatives. His adversaries managed to locate him and threatened his relatives for sheltering him, so he came to Hong Kong to seek protection via Mainland China.

6.He travelled from Pakistan to the Mainland and sneaked into Hong Kong illegally on 22 July 2015. He lodged the Claim on 1 December 2015.

7.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance") (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

8.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

9.On 2 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s 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

Legal principles applicable to judicial review

10.In a judicial review, the court does not step into the shoes of the decision makers.

11.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

12.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

13.In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

14.In the Supporting Affirmation, the Applicant deposed that it would still be dangerous for him to return to Pakistan. He exhibited the Board’s Decision but no other supporting documents to the Supporting Affirmation.

15.For reasons set out in §39 of the Board’s Decision, the Board found that the Applicant had not made out a case where he needed non-refoulement protection. The Board expressed doubts over the veracity of the Applicant’s claims due to the lack of particulars and his actions prior to raising the Claim (“§39(vi) of the Board’s Decision).

16.The Board also found that the Applicant had greatly exaggerated his injuries from the Attacks (§§39(ii)(a) and (c) and 39(iii) of the Board’s Decision) and the capabilities of those who allegedly targeted him. His allegation of target killing was unfounded (“§39(iv) of the Board’s Decision). It found that the alleged threats faced by the Applicant were not serious enough to exceed the requisite threshold of a minimum level of severity for seeking non-refoulement protection.

17.Lastly, the Board found that state protection was available (§§42-44 of the Board’s Decision) and internal relocation (§§65-69 of the Board’s Decision) would be viable.

18.As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

19.The Applicant attended the court hearing on 27 February 2025. He complained that the Immigration Department had confused his names and that he was suffering from heart illness. However, he was unable to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

20.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was 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.

21.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

22.In §§45-64 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that no severe pain or suffering within the definition of “torture” under Section 37U(1) of the Ordinance had been inflicted upon the Applicant. The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if he returned to Pakistan. The Board did not accept that the Applicant had a well-founded fear of the persecution risk as his fear of ill-treatment did not fall within the definition of “persecution” and it was not on account of any of the reasons referred to in Article 33 of the Refugees Convention. The Board also found that the Applicant had failed to establish a personal and real risk of facing the BOR 2 risk upon his return to Pakistan.

23.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were 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 Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

24.In the premise and having considered the Board’s 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 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 21^st day of March 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

Form CALL-1