Hashmi Qasim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2999/2019

[2025] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2999 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 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 11 October 2019 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 23 September 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 July 2018 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.The Applicant is a Pakistani national. He sneaked into Hong Kong from Mainland China on 1 January 2008. He was arrested by the police and referred to the Immigration Department. On 12 January 2008, he raised a claim under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (the “Torture Claim”) by written signification. His Torture Claim was rejected by the Director on 23 December 2013. On 24 April 2018, he lodged a claim under the Unified Screening Mechanism (the “USM”). In due course, his USM claim was assessed on all applicable grounds other than the risk of torture risk ground under the Immigration Ordinance (which had been considered under his Torture Claim), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His USM 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 his torture claim form and the supplemental claim form 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 cousin” because of their land disputes.

4.The Applicant, now aged 41, was born in Lahore, Pakistan. His widowed mother, his three brothers and three sisters are living in Pakistan. He is married to a Hong Kong resident with two stepchildren, all of whom are residing in Hong Kong.

5.The Applicant’s father, being the only son of the family, inherited a piece of land in Lahore from the Applicant’s grandfather. The Applicant’s aunt (Tahira) had asked the Applicant’s father for a share of the land, but the Applicant’s father refused on the basis of the terms of the grandfather’s will.

6.The Applicant’s father passed away in 2002 but the land remains registered in his father’s name. Since then, Tahira’s son (Imran) claimed the land was his. Imran worked in a video game centre. He was a member of the Pakistan People Party (“PPP”), but held no position in the party. He was only a worker. Between 2003 and 2004, Imran came to the Applicant’s home regularly and verbally abused the Applicant’s mother claiming the land should belong to him. He wanted the Applicant and his brothers to sell the land and give him a share. The Applicant and his mother refused. The Applicant’s brothers were not involved in the dispute with Imran because they were married and did not take so much interests in the land. As the Applicant was living on the land with his mother, he was targeted by Imran. At the screening interview, the Applicant departed from his evidence about the registered ownership of the land and said it was registered in his and his brothers’ names.

7.There were physical altercations between the Applicant and Imran but the Applicant did not suffer many injuries. However in 2005, he encountered Imran who was with four others, two of them were armed with knives. After some verbal exchanges, a fight ensued. The fight lasted for 15 minutes. The Applicant was slashed near the left side of his chest. He lost consciousness and was taken to a hospital. The doctor treating him wished to report the attack to the police, but the Applicant asked him not to. He was hospitalised for 20 days. While he was in the hospital, his mother told him that Imran had come to her home a few days prior and threatened to kill him if he sought help from the police. The Applicant took a year to recover at home. During that one year, Imran did not come to his home. In the screening interview, the Applicant said the attack took place in 2004 and not 2005, which fits better with the timing of his next encounter with Imran.

8.In October 2005, the Applicant encountered Imran again. Imran renewed his threat to kill the Applicant unless the land was transferred to him. The Applicant made a complaint to the station head officer at the Wad Road Police Station, but that officer refused to register the complaint and told him to leave and not to come back again. He saw the officer spoke on the telephone to Imran but did not hear the conversation. The officer also told him that if he tried to file a report again, he would be framed for a false case. The Applicant did not make any complaint at other police stations because Imran is a member of the PPP and had a lot of influence with other government departments.

9.On another day unknown, after the Applicant returned from a police station, he was threatened by Imran not to go anywhere else to report the matter. Out of fear, he stayed with various friends. He moved from home to home to avoid being located by Imran.

10.In February 2007, after learning of his plight from Imran, the Applicant’s uncle took him to his home in Karachi. However, on a day unknown in September 2007, Imran called his uncle and threatened to harm him if he continued to allow the Applicant to stay at his home. Then, his uncle arranged a trip for the Applicant to leave Pakistan and come to Hong Kong via Thailand and then Mainland China.

11.While in Hong Kong, the Applicant’s mother advised him not to return to Pakistan because Imran and his associates were still searching for him. The Applicant also claimed that as he is now married it would be difficult for him to leave his wife in Hong Kong.

12.He thought he could not obtain state protection as the police had refused to offer him protection before. He also thought internal relocation infeasible because Imran could locate him anywhere in Pakistan using his network in the PPP.

The finding of the Board

13.The Board accepted the facts of the case as asserted by the Applicant and assessed his risk of harm on that basis. It accepted he had been assaulted and threatened by Imran and his associates, that he had made a report at the local police station concerning the assault and threats, but the police refused to take action. He did not alert the police at other stations or any Pakistani authorities about the threat and the inaction of the local police station.

14.On the basis of the evidence, the Board made further finding that Imran had no intention to kill the Applicant. Imran knew where the Applicant lived and could have harmed or killed him if he wished, but he never did. Eleven years had lapsed. The Board doubted if Imran still has the means or still holds any interest in harming or killing the Applicant.

15.The Board found it would be futile for Imran to kill the Applicant. The land is registered under the joint names of the Applicant and his three brothers. Killing the Applicant would not achieve Imran’s purpose of possessing the land. Furthermore, formerly, the Applicant’s brothers were living outside and therefore took no much interest in the land, but now they are living in the family house built on the land, which made it less likely that Imran would seek to pressurise all of them to transfer the land.

16.It found the land dispute between the Applicant and Imran is a private dispute. There was nothing to indicate the dispute had any connection with the Pakistani government or its authorities. There was no evidence that the government was unwilling to help the Applicant for a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

17.The Applicant was bandaged and treated with medication during his 20 days’ hospitalisation. He then took a year to recuperate at home. He did not require any follow up treatment nor did he indicate that he had taken medication for his injuries during his one-year recuperation. The Board found it odd that he produced no medical record to support the injuries he suffered. It therefore considered the injuries did not attain the minimal level of severity. It also found there was no evidence that the pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity for the government.

18.The Board accepted that the officers in Wad Road Police Station had refused to help the Applicant and even threatened him not to come again, presumably because they were Imran’s friends. The Board found their attitude did not represent that of the entire Pakistani police force. It held on the basis of authoritative and credible country of origin information (“COI”) that the Pakistani authorities would be able to assist the Applicant and there was no evidence that the state of Pakistan was unwilling or unable to afford him protection.

19.Given his age, education and work experience in repairing mobiles, the Board found he could not relocate and find suitable employment to maintain himself in other areas of Pakistan. Eleven years had lapsed. There was nothing to suggest that Imran would come to know of the Applicant’s return. Even if he did, the Board doubted whether he would try to find the Applicant or even be able to do so. Indeed, the Applicant also conceded at the hearing that if he now returned to Pakistan and told nobody of his intention to do so, he could safely settle elsewhere in the country away from his home village.

20.For these reasons, the Board came to the conclusion that the future risk of harm to the Applicant on his return to Pakistan is small and there is not a reasonable degree of likelihood that his fear will materialise. Applying the law applicable to non-refoulement protection to these finding of facts, the Board found the Applicant is not entitled to 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

21.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[4].

Grounds for judicial review

22.The Applicant did not advance any grounds for judicial review in his Form 86. At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for him. However, in his supporting affirmation, he said he disagreed with the Decision because his life is still in danger in Pakistan. He accused the Board of making the wrong decision by failing to make proper inquiries but by relying on information from the internet. In essence, he is challenging the Board’s finding of fact that it is safe for him to return to his home country and the Board’s reliance on the COI. That is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision.

23.The Board accepted the Applicant’s account of the events on which his claim is based. He could not have any complaint on this finding of primary fact by the Board. From these fact, the Board made further finding of secondary fact that the injuries he suffered did not attain the level of severity as could support a claim for protection, that his cousin had no intention to actually kill him or seriously harm him, that the dispute between him and his cousin is private in nature, and that no government or public officials were involved in inflicting the injuries on him. It also found on the basis of the COI that the Applicant could relocate to other areas in Pakistan to avoid any risk of harm from his cousin. The COI considered by the Board are all from authoritative, independent and credible sources, such as Country of Origin Information (COI) Report: Pakistan and Country Information and Guidance Pakistan: background information including actors of protection issued by the United Kingdom Home Office, and Country Report on Human Rights Practices in Pakistan issued by the Department of State of the United States. The information is incontrovertible. At the hearing, the Applicant even conceded that he could safely relocate to other places far away from his home village. He could have no complaint on the Board’s reliance on these COI. All these are finding of facts, solely for the Board which the court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the Decision, which the Court will explore in its overall rigorous scrutiny of the Decision in the following section. Subject to the result of that scrutiny, there is no substance in this ground.

Overall scrutiny

24.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. 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 future risk of harm on his return to Pakistan is small. 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. The Court could detect 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 or procedural unfairness 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

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

Dated the 8^th day of May 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