Mehmood Farhat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 209/2020

[2025] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 209 of 2020

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:

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

Observations for the Applicant:

Introduction

1.By Form 86 dated 20 January 2020 (“Form 86”), 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 10 January 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 8 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed in Pakistan, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. 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

3.First of all, in view of the seriousness of the issues at hand, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, and adhered to a very high standard of fairness.

4.After reviewing all the evidence and documents produced by the Applicant, the Board refused to attach any credence to his story, finding it “incoherent, implausible and inconsistent” with the background evidence:

(1)  The Board found the Applicant’s account to be “vague and unsubstantiated”. There were significant discrepancies between the evidence presented to the Board and the statements made to the Immigration Department. These inconsistencies included the years when incidents occurred, as well as the number and descriptions of those incidents.

(2)  The Applicant refused to answer questions about why individuals from his home district would go to the trouble of traveling a considerable distance in hopes of locating him. The Board found the Applicant’s claim to be “extremely implausible”, and his failure to explain this significantly undermined the credibility of his claim.

5.The Board also noted that the potential harm in this case was not posed by a State actor, but by private individuals. The Applicant claimed to have filed a complaint with the police; however, it appeared that he did not follow up to ensure that the police took appropriate action. The Board considered that the Applicant’s claim that the authorities were unable or unwilling to protect him was “untested” and, therefore, “fanciful”.

6.Based on these findings:

(1)  The Board noted there was no evidence, not even in the Applicant’s statements, to suggest that he had been subjected to any serious harm.

(2)  The Board concluded that it would be safe for the Applicant to move to a different part of Pakistan. The Board noted that he was a fit, young man with a history of working. There were no obstacles to his relocation to another part of Pakistan.

(3)  The Board assessed that the Applicant had not established a well-founded fear of persecution, and he could avail himself of an internal relocation alternative.

(4)  The Board found that the Applicant had not established a “well-founded fear” of persecution in Pakistan on account of his race, religion, nationality, membership of a particular social group or political opinion.

(5)  The Board found that there was no real risk to the Applicant’s right to life and no prospect that he would face torture or cruel, inhuman or degrading treatment or punishment.

(6)  The Board found that there was no risk of torture to the Applicant. The Applicant also had not claimed that a consistent pattern of gross, flagrant or mass violations of human rights existed in Pakistan, and he had not adduced any evidence in support of that contention.

7.It was primarily within the province of the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation. The Applicant has failed to identify any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). Nor has he complied with the duty to make full and frank disclosure in this application (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

8.In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (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, etc.).

9.I am not remotely convinced that the Applicant’s intended challenge of the Board’s Decision 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.

Conclusion

10.I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 30^th day of June 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