Ahsan Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3561/2019

[2025] HKCFI 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3561 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 (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party instead of the 2^nd Putative Respondent.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 2 December 2019, the Applicant applies 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 28 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 28 August 2019 (“the Director’s Decisions”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.I have amended Form 86 on my own motion to correctly identify the Director as the putative interested party instead of one of the putative respondents as named by the Applicant.

Background

3.It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, his case and claim, including the incidents alleged by him to show that his life would be in danger in Pakistan, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.In support of his intended judicial review, the Applicant has raised the following grounds in Form 86:

(1)  The Director and the Board had made the wrong decision in assessing his non-refoulement claim. Their decisions were not reasonable or fair, as required by the Wednesbury test. The Applicant reiterates his fear of being killed in his own country, claiming protection of his right to life (“Ground 1”).

(2)  The Director had failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case, leading to the unfair outcome of rejection of his non-refoulement claim. The Applicant alleges that he had been tortured at the Behest, the state law enforcement agencies as well as in the high political circles. The state would be rendered liable to him by failing to provide reasonable protection for its citizens under the duty of due diligence (“Ground 2”).

(3)  The Board was unreasonable and acted procedurally unfairly by placing too much reliance on the COI information without taking into account the Applicant’s personal background and experience. The Director had listed COI information which supported that the police in his country would not be able to protect him. The Director however had failed to consider or give enough weight to such evidence and to rule otherwise (“Ground 3”).

(4)  Before reaching the Director’s Decision, the Director had failed to take into account the Applicant’s argument or to give enough weight to it. This was a clear case of the Director’s unfair attitude, which was of itself enough to render the Director’s Decision void. The corruption and incompetency of the administration in his own country is still a very serious problem. Various human rights organizations have compiled reports which support his assertions (“Ground 4”).

(5)  With respect to the arguments put forward by the Applicant, the Director had failed to attain the high standard of fairness as required by the Wednesbury test. As such, the Director’s Decision should be considered unreasonable in the scope of public law (“Ground 5”).

(6)  The Board had acted procedurally improperly and/or unfairly when assessing whether or not to accept the Applicant’s explanations, and was unreasonable in requiring him to respond to questions that he was not in a position to offer any response. The Board had failed to take into account the nexus of political parties and official corruption existing in his country, making the persecution effectively the persecution by the State (“Ground 6”).

(7)  Based on the findings, the Board ought to allow the Applicant’s appeal/ petition instead of dismissing it, and thus the Board’s Decision was irrational (“Ground 7”).

5.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision based on the above grounds is reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, and have therefore refused leave.

6.First of all, the decision of an immigration officer is not a decision that is within the administrative structure susceptible to judicial review once an appeal to the Board is pursued by a claimant: see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc. It follows that the parts of Grounds 1 and 3, and the entirety of Grounds 2, 4 and 5, which seek to challenge the Director’s Decision, are bound to fail.

7.As for the rest of Grounds 1 and 3, and Grounds 6 and 7, they are unmeritorious for the reasons below and must also fail.

8.An applicant seeking leave to apply for judicial review has to observe the duty of full and frank disclosure: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35. It is an onerous duty, extending beyond disclosure of material facts to potential legal answers to the claims of an ex parte applicant. However, in the supporting affirmation, apart from exhibiting a copy of the Director’s Decision, the Applicant has not disclosed any facts or information at all. The fact that the Applicant is acting in person does not exempt him from such duty, nor does it provide justification for his non-compliance.

9.Moreover, it is inadequate for the Applicant to simply restate his claim of fear in Ground 1. Leave application does not operate as a rehearing of the appeal to the Board. It should not be deployed by the Applicant as an avenue to re-run his arguments which had already been canvassed by the Board.

10.In any event, the Applicant’s general assertion that the Board was unreasonable or unfair in Ground 1 does not constitute a valid and effective ground for judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. It can hardly be considered as viable when it fails to identify the error allegedly committed by the Board and pinpoint it with sufficient particularity.

11.With respect to Ground 3, it must be recognized that the Board was the primary decision‑maker, who was empowered to evaluate the Applicant’s evidence and determine their individual weight. The Board had made factual findings regarding the Applicant’s non-refoulement claim after the hearing based on his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc., taking into account all relevant materials such as his personal circumstances and country of origin, etc.: see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1.

12.In scrutinizing the Board’s Decision, I bear in mind the enhanced standard that must be adopted in view of the seriousness of the issues at hand: 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.

13.As can be seen, the Board was not convinced that the Applicant’s enemies were involved in the Incidents, as there was a gap of 4 years between Incidents 1 and 2 (2014) and Incident 3 (2018). If the people in Incident 3 belonged to the same group involved in Incident 2, they would not have waited for 4 years to kidnap him again. There was also nothing in Incident 3 to show that the people in the car indeed intended to kidnap him. The Board found that it was the Applicant’s “wholly unfounded” and “sheer speculation” that his enemies had masterminded all these and that they still had grudges against his father because of the land dispute in 2006. The Board did not believe that the land dispute was still alive and concluded that the Applicant “could not be speaking the truth”.

14.The Board further considered that as all the Incidents occurred in the vicinity of the Applicant’s home village, his perceived fear was localized. Thus, even if such fear did exist, in order to avoid it, the Applicant could resort to internal relocation. This would also be the best option for him given his situation. The Board referred to the COI information and was satisfied that the Applicant had many options for relocation in Pakistan, including Lahore and Karachi. The Board also considered that at the time of the hearing, the Applicant was 32 years old, with 12 years of education and 2 years of working experience as a personal banking officer. The Board concluded that it would not be unduly harsh or unreasonable for him to relocate to places in Pakistan other than the locality of his home village. It is certainly not the case, as alleged by the Applicant, that the Board had acted unreasonably in failing to take into account his personal background and experience.

15.The Board’s discussion and consideration of the different grounds under the USM were set out in inter alia the following paragraphs in the Board’s Decision: (i) Torture Risk (§§44-49); (ii) BOR 2 Risk (§§50-52); (iii) BOR 3 Risk (§§53-57); and (iv) Persecution Risk (§§58-61).

16.Upon rigorous examination and anxious scrutiny, it is evident that the Board had reached its conclusion that the Applicant failed to establish the facts asserted and hence his claim based on the evidence available[2].

17.The Applicant has not identified any errors of law or procedural unfairness or irrationality in the decision of the Board. He has not specified the COI Information mentioned in Ground 3. He has also failed to show how the information in question would allegedly apply to his case, in what way the Board allegedly failed to take into account any of those information or was being selective or improperly relied on any of them, or how the Board allegedly erred in the decision as a result, or how the high standard of fairness was being allegedly compromised, etc. Merely asserting that the Board had acted procedurally unfairly and was unreasonable in Ground 3 does not advance the Applicant’s case.

18.Ground 6 is also entirely devoid of substance. Not only has the Applicant been extremely vague regarding the matters described in that ground, more significantly, the complaint itself is also completely unsubstantiated. There was no procedural impropriety or unfairness in the Board requiring the Applicant to respond to questions. While the Board was under a duty to make a joint endeavour with the Applicant to ascertain and evaluate the facts raised in support of his non-refoulement claim, the burden of proving the underlying factual case was nevertheless on him. The Board could not undergo the joint endeavour without his cooperation: see Re Arcega Ian Patrick Pedroso [2022] HKCA 895 at §28.

19.As to the Applicant’s other complaint that the Board had failed to take into account the nexus of political parties and official corruption existing in his country, etc., it resembles a pro forma statement commonly seen and used in this type of leave applications. He has again been extremely vague, by only including a few ‘key words’ and ‘phrases’ but without providing any specific details or particulars. The concerns I have highlighted earlier on regarding the COI Information can also be said here.

20.As for Ground 7, instead of merely asserting that the Board should or ought to have allowed his appeal/ petition, it is incumbent on the Applicant to make out his complaint of the procedural or public law error allegedly committed by the Board. It is not for the Court to come to a fresh view on whether he would face any of the prescribed risks of harm. Unless and until he establishes irrationality or such other public law grounds in the present case, the role of the Board should not be usurped: 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, and Re Masoom Parvez [2018] HKCA 163.

21.I also note that at the oral hearing, the Applicant has made no submissions addressing the issues and concerns above and has not added anything of substance to support his application for leave.

Conclusion

22.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 28^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