Hamza Ameer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2473/2024

[2025] HKCFI 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2473 of 2024

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 Applicant being absent in open court;

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 Hamza Ameer (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 December 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 August 2024 (“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 25 July 1998 in Punjab, Pakistan.  He received 10 years of education and had been operating his family business from 2016 to 2021.

3.The Applicant claimed that his stepmother and one of his half-brothers (“Ali”) wanted to harm or kill him because of a land dispute.  He claimed that he inherited a commercial building and its underlying land from his late father in 2021 (“Properties”).  The Applicant applied to the government office for transfer of the ownership of the Properties to him.  Ali insisted that the Applicant had no right to inherit the Properties.  Ali requested the Applicant to withdraw the transfer application and give the Properties to his stepmother and his half-brothers.  Ali occasionally threatened to take the Applicant’s life if the Applicant did not accede to his request.

4.The Applicant said that in an attempt to obtain the Properties from him, his stepmother tried to poison him in around December 2021.

5.The Applicant said that there was an on-going civil litigation between him and his half-brothers in Pakistan.  From 2022 onwards, he started receiving phone calls from the gangsters, said to have been commissioned by Ali, demanding immediate withdrawal of the civil litigation.  They threatened the Applicant that he would lose his life if he did not accede to Ali’s request.

6.Ali (together with the gangsters) threatened the Applicant in January 2024 and again in April 2024 to withdraw the on-going civil litigation immediately and to renounce the Applicant’s claims to any properties owned by his late father.  The Applicant said that he needed time to consider.  They then left without causing any physical harm to the Applicant on those occasions.

7.Because of the aforesaid perceived threats, the Applicant moved from place to place in Pakistan in April and May 2024.

8.He left Pakistan for Mainland China on 29 May 2024 and sneaked into Hong Kong illegally on 12 June 2024 to seek protection.

9.The Applicant lodged the Claim on 29 June 2024.  He claimed that if he were to be returned to Pakistan, he would be harmed or killed by his stepmother, Ali and Ali’s gangsters.

10.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 (“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 (“persecution risk”).

11.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.

12.On 13 December 2024, 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 and the Director as the interested party.

Legal principles applicable to judicial review

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

14.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 [i.e. country of origin information] 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.”

15.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

16.The Applicant failed to attend the court hearing scheduled for 27 February 2025 (“Court Hearing”) despite a notice of hearing dated 5 February 2025 having been sent to him and not being returned.  In fact, the Applicant had also failed to respond to another letter dated 13 January 2025 sent by the court to him previously inviting him to send submissions to the court.  As such, I decided to proceed to deal with this application according to papers already placed before the court.

17.In the Form 86, the Applicant annexed a statement (“Statement”) repeating his story about the alleged threats from his half-brothers and stepmother.  He also added that he and his uncle were being persecuted on political ground.  False charge was laid against the Applicant and his uncle for “huge blast and clashes” happened during a political protest in Gujrat/Punjab.  The Applicant’s uncle had to flee Pakistan to save his own life. (“Political Ground”).

18.In the Supporting Affirmation, the Applicant did not put forward any ground for his intended judicial review nor produce any supporting documents other than the Board’s Decision.

19.Matters referred to in the Statement concerning previous threats from his stepmother, Ali and Ali’s gangsters had been considered by the Board. Other matters alleged were bare assertions without particulars or supporting evidence.  The Applicant had failed to attend the Court Hearing to provide particulars for those matters.  In any event, I do not find these matters advancing the Applicant’s case any further.

20.The Applicant had stated in the Claim that the leader of the gangster assisting Ali was the President of Pakistan Muslim League (“PML(N)”) of the Applicant’s home division.  Although the Applicant insisted that the gangster leader was a man with a lot of influence with friends and contacts all over Pakistan through the PML(N), the Applicant did not refer to any proscribed risk relying on the Political Ground in the Claim.  The Political Ground is not new evidence for the Claim.  It is a new ground for seeking non-refoulement protection which was not part of the Claim, subject of the Board’s Decision. It has no connection with the Claim and thus will not constitute a ground for judicial review of the Board’s Decision.  Judicial review is not an occasion for the Applicant to lodge a fresh claim for non-refoulement protection.  The Applicant had failed to attend the Court Hearing to explain the relevancy of the Political Ground to his intended judicial review.  As such, the Political Ground will not be considered in this application.

21.The Board found that the Applicant had not substantiated his claim for non‑refoulement protection.  The Board noticed that the testimony by the Applicant in the hearing before the Board significantly deviated from his evidence before the Director.  It found that the discrepancies negatively affected his credibility and that the Claim was not credible.

22.Lastly, the Board found that internal relocation would be viable to the Applicant (§§10(n) and 29 of the Board’s Decision) given that he was able to avoid his half-brothers after relocating to Islamabad.

23.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.  

24.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.

25.The Board had considered the claims of the Applicant individually and cumulatively, as well as considering the personal circumstances of the Applicant.  The Board did not consider that the Applicant faced a real risk of proscribed harm if he was refouled to Pakistan.  Internal relocation was viable for the Applicant.  In §§31-39 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  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.  The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

26.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 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

27.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 25^th 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