Iftakhar Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2816/2019

[2025] HKCFI 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2816 of 2019

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;

Order by Deputy High Court Judge Levy:

1.   The Form 86 is amended on the court’s own motion;

2.   The Leave Application be dismissed;

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 25 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 9 December 2016 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 28 February 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

3.In the Form 86, the applicant named the Board as the interested party when the Director should have been the proper interested party.  The Form 86 is therefore amended accordingly on the court’s own motion.

Background

4.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.The applicant is a national of Pakistan.  On 30 May 2007, the applicant was arrested by police for having entered Hong Kong illegally, and was referred to the Immigration Department for investigation on 2 June 2007.  On 24 August 2012 the applicant lodged a torture claim on 18 June 2007, which was rejected.  He raised his non‑refoulement claim on 22 March 2013.  The applicant’s claim was considered under all applicable grounds except torture risk^[1], i.e.  BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by his former employer Munir Bajwa, or by Bajwa’s enemies Altaf and Sajid Boutter.  He also claims that he is wanted by the Pakistani police and would be sentenced to death for murder.

6.According to the applicant, in about 2003 he began working for Bajwa who was a big landlord in the village of Kirtu Pandori.  Initially he was employed as a harvesting machine operator, and a month later became his bodyguard.  In May or June 2005, Bajwa drove the applicant and three other men in his car to the outskirts of the village, where Altaf and Sajid Boutter and about 7 or 8 of their people were sitting at the roadside.  Altaf and Sajid started firing at them.  Bajwa then stopped the car, got out and they returned fire with machine guns.

7.The gunfight exchanges lasted about 30 to 45 minutes.  One of the men of Altaf and Sajid’s was killed during the gunfight, and two others were injured. The applicant was very scared and started to flee, as he was not sure whether he had killed or injured anyone on the other side.

8.The next day, the applicant left Kirtu Pandori for his home village of Kot Bura, where he stayed for 3 or 4 days.  He called Bajwa to resign.  While in Kot Bura, the applicant learned from his friend, Naseer, that the police were looking for him in relation to the killing in the gunfight, and that the deceased man’s friends were also looking for him.  The applicant therefore travelled to Lahore to stay with his friend, Waras, for 2 or 3 months. 

9.While the applicant was in Lahore, Naseer told him that Altaf and Sajid sent people to his parents’ home to ask for his whereabouts, but his family refused to tell them.  Naseem also told the applicant that the police also came looking for him.  Prior to leaving Pakistan, the applicant returned to Kot Bura to ask his family for help, but they refused and in fact had disowned him.  With Waras’ help, the applicant left Pakistan on 7 September 2005 for Dubai.  In Dubai, an agent took the applicant on a flight to mainland China, and arranged for him to take a boat to Hong Kong.

10.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low as the Director found the applicant’s evidence as hearsay only without any corroboration.  The found that applicant’s fears of Bajwa and the police were purely speculative.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

11.On 27 August 2019, the applicant together with his counsel assigned by the Duty Lawyer attended a hearing before the Board.  The Director was represented by a Government Counsel.  At the hearing, the Director submitted that there was insufficient evidence to establish a real risk of harm, and pointed out that the applicant had stayed in Lahore until September 2005 without any problems.  Counsel for the applicant conceded that the applicant’s claims that Bajwa would kill him was speculative.

12.The Board found that there was no real risk of harm.  The Board found that there was insufficient evidence to find that the applicant was at risk of harm from three sources arising out of the gunfight from Bajwa or Altaf and Sajid.  It also found that there was no cogent evidence that the applicant would face the death penalty for murder if returned to Pakistan.  In particular, the Board found that there was no evidence that Bajwa intended to frame the applicant for murder, and that there was no substantive evidence that Altaf and Sajid had pursued the applicant.  The applicant also failed to provide any evidence to prove that he was facing or likely to face criminal charge for murder in Pakistan.  Having found that there was no real risk of harm, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

14.The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.  In his supporting affirmation, the applicant exhibited the Board’s Decision, and merely stated that he wished to apply for judicial review of the Board’s Decision and asked for a favourable result so that he could save his life.

15.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant submitted that his problem at home is not settled, and no compromise has been made despite the negotiations with Bajwa by his family and friends.  He was not sure whether he was still wanted by the police.

16.It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

17.The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant’s was unreliable, thus there was no real risk of harm.  The Board also concluded that reasonable state protection would be available and internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with.

18.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

19.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

20.The Form 86 is amended on the court’s own motion;         

21.The Leave Application be dismissed;

Dated the 7^th day of April 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