Butt Hassan Mahmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 628/2021

[2025] HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 628 OF 2021

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 October 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 23 January 2021. His application was filed on 5 May 2021, which is late for more than 3 months. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 14 May 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. According to records, the applicant illegally entered Hong Kong on 11 January 2016 and surrendered to Immigration Department on 14 January 2016. In due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) as the applicant was a member of the Pakistan Tehreek-e-Insaf.

6.According to the applicant, there were two incidents on the polling day of the 2013 General Election with the PML(N) where the applicant was beaten up by wooden sticks, and was later threatened by the men stopping the applicant from seeking help from the police. He later received death-threatening calls and his son had also passed away. The applicant believed members of PML(N) had killed his son. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 August 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the claimed level of risk was assessed to be low; that the intensity and frequency of physical ill-treatment from PML(N) in the past was indicative of a small future risk of harm; that the PML(N) did not exhibit any real intention to cause the applicant serious harm or to kill him; and that the problems with PML(N) members were likely to be localized rather than as a whole group [11-15]; and that state protection was available [16-18]; and internal relocation alternatives were available and reasonable [19-22].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 10 September 2020, the Board conducted an oral hearing for his appeal, but the applicant did not attend the hearing. An opportunity was given to explain his absence for seven calendar days to seek re-schedule of the adjourned hearing but no response was received [2].

10.The Board proceeded on the papers. Having considered the evidence, the Board found that there was low intensity and infrequency of past encounters that the applicant had not shown substantial grounds that he would be tortured, nor did the applicant meet the minimum standard of severity under BOR 2 and 3 Risk and a reasonable possibility of persecution was not substantiated [29-32]. In any event, the Board found that state protection was available [34-36]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 5 May 2021 for leave to apply for judicial review of the Board’s Decision. He did not give any reason in support of his application in Form 86.

12.In his affirmation in support of his application, the applicant exhibited the Board’s Decision without putting forth any ground in support of his application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.