Khan Mohib Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2209/2024

[2025] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2209 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 20 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 10 October 2024 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 July 2024 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.The Applicant is a Pakistani national.  He sneaked into Hong Kong on 28 April 2024.  He surrendered to the Immigration Department (the “Department”) on 8 May 2024, and made a non-refoulement claim on the same day.  In due course, his non‑refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to Pakistan, he will be harmed or killed by his relatives (“Sajid” and “Ali”) and villagers (“Asif” and “Parveen”) because of their land disputes.

4.The Applicant, now aged 30, was born in Karnol, Mansehra, Pakistan.  He is single.  His widowed mother and two brothers are living in Pakistan.  He had received 12 years’ formal education and had three to four years’ experience running his own business of supplying construction material.

5.The Applicant claimed that he inherited three plots of land from his late father when he was eight years old.  Since then, Sajid occupied his commercial plot of land with five shops.  His mother filed a case with the village council and the court.  In the past 20 years, Sajid, Ali and their men threatened him and his family with pistols three to four times to withdraw the court case.  In 2015, his brother was assaulted and required treatment from a local clinic.  The court case remained unresolved in 2022.  After filing the papers to run for election to be a Councillor of Union Council in Karnol, Sajid returned the land and shops to him.  The Applicant said Sajid did so to prevent damage to his credibility during the election.  However, after winning the election, Sajid sent gangsters to threaten the Applicant’s family with guns and placed concrete blocks on the pathway outside his home.  The Applicant reported the incident to the police, but no action was taken.

6.After his father passed away, Asif occupied his agricultural land.  His mother filed a case with the village council and the court.  Since 2019, Asif constantly sent men to threaten his family to withdraw the court case.  In 2022, Asif and 14 or 15 of his underlings intercepted the Applicant and his friend and threatened him to withdraw the court case.  Some of Asif’s men showed them they were carrying pistols.  The Applicant did not report the incident to the police.  Eventually, his family won the court case, and the land was returned to him.  Asif is now appealing against the court’s decision.

7.Parveen occupied his land next to his home and obtained the land title by forging documents.  His mother also filed a case with the village council and the court.  He and Parveen often had verbal arguments.  Although he won the court case, Parveen refused to return the land to him.  The case is still on-going.

8.On the advice of his relative, the Applicant flew to Mainland China and then sneaked into Hong Kong.  He claims that state protection is not available because the authorities and the police would not render assistance to him and his family for a land dispute.  He does not believe internal relocation viable, as Sajid is politically influential and could locate him throughout the country through his powerful network.

The finding of the Board

9.On the basis of authoritative and credible country of origin information (“COI”), the Board accepted that land disputes are prevalent in rural and urban areas throughout Pakistan, resulting in violence and deaths.  However, there are established judicial processes in place for the resolution of land disputes.  A person who fears ill treatment by other parties to the dispute will be able to seek effective protection from the authorities and relocation is also generally available.  The Board also noted from the Land Portal of 2021 that Pakistan was to set up ‘fast track’ courts to settle land grabbing cases of overseas Pakistanis and that such cases would be settled in 30 days.

10.The Applicant testified before the Board.  He made some new and serious allegations inconsistent with his initial claim and evidence before the Board, which made the Board found him incredible.

11.His initial claims were focused on Sajid and Ali, but he later introduced Parveen and Asif in his NCF.  When asked, he said that his main dispute was with Sajid and Ali, but Parveen and Asif also wanted to kill him.  The Board did not accept his explanation because if there were two more people who wanted to kill him, he would have mentioned them in the initial claim.

12.Initially, he told the immigration officer that he owned the land.  He did not mention that his family members were also legal owners of the land.  When confronted, he gave vague and inconsistent evidence claiming variously that he owned it, his mother owned it, and his family owned it.

13.Moreover, he told the Board for the first time that Sajid made a false case of murder against him and caused him to be imprisoned for nine months in 2015 and bribed the police to beat him.  He said he had supporting documents, but was unable to obtain them as he was detained in Hong Kong.  However, he did not leave Pakistan until 2023.  When the Board queried why such a significant claim had not been raised before, he gave no direct answer but asked the Board to put itself in his position.  The Board did not accept his explanation.  Even though he was detained, he was assisted by a lawyer when he lodged his NCF and he had another opportunity to provide more details of his claim during the screening interview.  The Board was of the view that if he had been genuinely detained in 2015 for a false murder charge and assaulted, he would not have failed to mention it at an earlier time.  The Board rejected his evidence about the false charge of murder, and considered the introduction of significant new allegations during the hearing, without a reasonable explanation, was indicative of his poor credibility.

14.When asked why he had to leave Pakistan but his brothers and mother could remain, the Applicant explained that was because he was at the forefront of all the disputes and that his family was safe only because he is not in Pakistan.  The Board did not accept his explanation credible and considered it an attempt to overcome the Board’s adverse comments.

15.The Board accepted his evidence before the immigration officer but not his testimony before the Board, such as the false charge and 2015 detention and that he was at the forefront of the legal disputes.  The Board found the testimony was the Applicant attempt to embellish his family’s legal disputes regarding land to establish a claim for his protection in Hong Kong.  It found even taking his claims at their highest, his evidence indicated that he had only been threatened and his brother was assaulted on one occasion. He had not seen Parveen since 2012 and never met Asif directly.  Whilst the land disputes may have resulted in some threats directed towards him, there was no evidence suggesting that Sajid, Ali, Asif, or Parveen had any intention to harm him or his family, as they had ample opportunity to do so in the past, but they never did.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he faced a real risk of ill-treatment if refouled to Pakistan.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

16.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

17.In his supporting affirmation, the Applicant repeated his case and said that the Director reached the wrong decision in assessing his claim without making any proper inquiry or without carefully understanding his situation.  He invited the immigration officer to visit Pakistan to understand the situation there.  His complaints are directed at the Director.  As the Director’s decision was superseded by the Board’s Decision, the Court assumes for his benefit that the complaints are directed at the Board.  His allegation that the Board made a wrong decision is a statement of fact and a direct challenge of the Board’s finding of fact, which is impermissible, unless supported by evidence.  He made the following submissions at the hearing.

18.He was detained in Castle Peak Bay Immigration Centre (“CIC”) for seven months and not allowed to make calls to enable him to obtain documents from Pakistan to support his claim.  He said no friend could assist him while he was in CIC.  He requested his lawyer from the Duty Lawyer Service to arrange calls to Pakistan but the lawyer declined.  It was only after he made the present leave application that he was released on recognisance.  He was able to obtain a bundle of documents from Pakistan which he produced to the Court.  The documents are documents from the Pakistani court.  They had not been submitted to the Board.  They are unauthenticated.  They were mainly handwritten in Pakistani language, except for a few pages which were typed in English.  He did not provide any English translation.  He said that the documents in English are court orders.  He said he had made a statement to his lawyer and that these documents support what he had said in the statement was true.  He said he could produce more documents if necessary.  For the reasons as given below, it would serve no useful purpose to require the Applicant to establish their authenticity and provide translation and produce the other documents relating to the land dispute.

19.The Applicant’s case before the immigration officer was based solely on the land dispute.  Before the Board, he added a new claim that a false charge of murder resulting in his detention for nine months was made against him.  The Applicant said that the documents now submitted support that what he had told the Board is true.  For convenience, the Court considers them de bene esse, leaving the question of authenticity to be resolved later on if necessary.  For the purpose of this application, there is no need to verify their authenticity.  This Court assumes they are authentic.  Insofar as the documents relating to the land disputes are concerned, the Board accepted the Applicant’s evidence about the land disputes.  Thus, the documents would not assist him further in that respect.

20.As for the false murder charge, the documents supports the fact that the Applicant had been charged with murder and detained for nine months in 2016, not 2015 as claimed.  This Court gave the Applicant the benefit of the doubt that the difference in timing is the result of failure in memory which does not damage the Applicant’s credibility or affect the case he was trying to present.  However, the documents fully support that a charge of murder had been properly laid against him.  The statement of fact presented by the prosecution is that on 29 February 2016, the Applicant and his brother threw wastes in front of their neighbour’s house.  When the neighbour protested, the Applicant’s brother pushed him down to the ground and the Applicant hit his head with a brick.  Their neighbour died as a result.  The Applicant and his brother were charged with murder.  Then, on the intervention of the elders of the locality, the deceased’s wife and nephew patched up the matter with the Applicant and his brother.  They forgave the Applicant and his brother in the name of Allah and waived their right of Qisas and Diyat before a sessions judge.  The Applicant and his brother were then acquitted.  The procedures were documented with forensic science report, post mortem report, court documents, statements from the deceased’s wife and nephew, and statement from the elders.  The Applicant was acquitted after going through the normal course of prosecution. It is not a case where he was acquitted for want of prosecution, or for witness not coming up to proof as to suggest a false charge.  In the absence of specific allegation about the falsity supported with credible evidence, the documents only supported the fact that a charge of murder had been properly laid and properly disposed of by a court of law which resulted in the Applicant’s detention for nine months pending time.  They do not support the Applicant’s claim of false charge.  These documents were never before the Board.  The Board made its finding primarily because of the late allegation and lack of supporting evidence.  Even if the documents were available before the Board, they could not have supported the Applicant’s claim for want of evidence of the falsity.

21.The Applicant complained he was detained for seven months during which time he was not allowed to contact his family and ask them to obtain the documents.  Obviously, he was detained because he has no right of entry and he entered Hong Kong illegally.  Whether to release him on recognisance is a matter of discretion for the director.  The Applicant could have no complaint for his detention.  This Court has grave reservation about his complaint that he was not permitted to call his family.  But he had access to his lawyer and his lawyer could have done that for him.  As for his complaint that his duty lawyer refused to assist him, these are matters privy to him and his lawyer.  His complaint is a bare allegations not supported by evidence.  It may not be appropriate for this Court to explore this complaint further as it may involve questions of confidentiality and professional privilege.  It may well be that his lawyer for the same or other reasons considered the documents could not assist him or he had never told his lawyer about the documents.  In any event, the complaint does not raise any issue of procedural unfairness on the part of the Director or the Board.

22.For the above reasons, his submission disclosed no arguable grounds of judicial review.

Overall scrutiny

23.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicants’ claim on the basis of his case as he asserted, except in respect of the false murder charge due to lack of supporting evidence.  These are finding of facts solely for the Board which this Court may not intervene. It was on that basis that the Board further found the Applicant’s feared ill‑treatment was not well-founded.  Then, applying the law applicable to non‑refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, the Board is absolutely correct. There is no error of law in the Decision.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review may not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

24.For the above reasons, the leave application is refused.

Dated the 10^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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]