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

HCAL 1399/2021

[2025] HKCFI 3342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1399 of 2021

BETWEEN

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 6 October 2021 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 3 September 2021 dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 February 2015 (the “Notice”) and in his Notice of Further Decision dated 27 June 2017 (the “Further Notice”), refusing his application for non-refoulement protection .

2.The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

Background

3.The Applicant is a Pakistani national, now aged 55.  He first entered Hong Kong in December 2002 and overstayed since April 2003.  In 2005, he made an asylum application to the Hong Kong office of UNHCR which was rejected sometime in 2007.    He then made a non-refoulement claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was then converted into a claim under the Unified Screening Mechanism (the “USM”).  His claim was assessed and dismissed under Torture Risk^[1]; BOR 3 Risk[2] and Persecution Risk[3] grounds by the Director’s Notice and further assessed and dismissed under BOR 2 Risk[4] ground by the Director’s Further Notice.  His appeals against the Notice and Further Notice were dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the torture claim form, supplemental claim form prepared by him with legal assistance and the record of his four screening interviews in the presence of his lawyer.  In gist, he claims that if returned to Pakistan, he will be ill-treated or even killed by a moneylender for being unable to repay his loan, by the Pakistani authorities at the instance of the moneylender, by a customer for failing to fulfil his order which caused the customer monetary loss and by his family and the Muslim community for marrying a Christian woman.

5.The Applicant is a Muslim.  In 1999/2000, he borrowed PKR800,000 from the moneylender at a monthly interest of 10% of the capital loan to enable him to meet a customer’s order.  He believes the moneylender is the leader of a criminal gang involved in drugs and connected to a named dangerous region in Pakistan where the Taliban operated.  He believes the moneylender has clout with an unnamed minister in the national assembly. 

6.He paid monthly interest for four months until around 2001 when floods damaged his merchandise and he was unable to fulfil his customer’s order.  The moneylender gave him a month to repay the principal.  He was unable to repay after a month.  He was assaulted by the moneylender’s bodyguards and abducted to the moneylender’s home for two days.  Upon his father’s plea, the moneylender released him under a threat to take him to the named dangerous region of Pakistan if he could not repay the loan within three days.

7.After three days, the moneylender and his bodyguards broke into his home to look for the Applicant.  The Applicant and his family escaped to the rooftop of the adjacent building and then went to his friend’s home where they stayed for the night. 

8.The Applicant returned to his home the next day.  When the moneylender and his bodyguards came, he tried to escape, but was captured and assaulted.  The moneylender took him to a police station and ordered the police officers to assault him with a special weapon, a chitter, as well as with their fists and boots.  The officers stripped him and tortured him until he almost lost consciousness.   

9.He was released the next morning.  After receiving treatment from a traditional doctor, he went to town Q.  There he sold his business stock to raise funds for departing Pakistan.  Later, he returned home to collect money which his mother had borrowed from relatives for his trip to China.  Learning that he had returned, the moneylender and his bodyguard raided his home.  They broke down the main door and shot at the Applicant.  The Applicant managed to escape.  In December 2002, he flew to Mainland China and then came to Hong Kong.

10.The Applicant married a Christian woman in a church in Hong Kong.  He did not register their marriage because he is an over-stayer. In July 2004, the woman gave birth to their daughter.  Ten months later, the Christian woman left the Applicant and their daughter.  The daughter is a Muslim and was seventeen years old at the time of the appeal.  The Applicant worries that his marriage to a Christian woman would not be accepted in Pakistan.  In addition to his fear of harm from the moneylender, the Pakistani authority and his customer, he fears that he and his daughter will be tortured and killed by the moneylender and Muslim religious groups, if they return to Pakistan.   

The finding of the Board

11.The Applicant appeared before the Board initially constituted to an adjudicator (the “first adjudicator”).  The Board conducted two oral hearings.  The Applicant was legally represented by the Duty Lawyer Service (the “DLS”).  He testified at the first hearing but not at the second.  For some reason, the first adjudicator was unable to complete the determination.  The hearing of the appeal was continued before the Board constituted of another adjudicator (the “present adjudicator”).  The present adjudicator considered a further hearing was required and scheduled a third hearing.  That hearing was rescheduled because the Applicant had been arrested by the police two days prior and it was not possible to arrange escort to bring him to the hearing.

12.At the rescheduled third hearing, the focus of the Applicant’s discussion with the Board was his release from detention which the Board had no power to order.  As for his appeal, the Applicant told the Board that he did not want to answer any questions from the Board and requested the Board to make a decision on the basis of the material before the Board as he was told he could possibly be released from detention once he had finished the hearing.  The Board fairly informed him that if he chose not to answer the Board’s questions, it was likely that his appeal would be refused.  He then reversed his position and said he was willing to answer.  In the further exchanges, the Applicant gave some confusing and conflicting information about his dealing with the DLS which suggested that the DLS refused to act for him because of his failure to attend meetings with the DLS twice because he suffered a cough on one occasion and had burnt his finger on another.  It was not entirely clear if he had given the explanation to the DLS.  When the Board offered to adjourn the hearing and invite the DLS to act for him, the Applicant changed his position and urged the Board to make a decision as soon as it could on the basis of the material now before the Board.  He said he was concerned for her daughter’s welfare and that he was suffering from a medical condition which he claimed placed his life at risk while in detention.  Thinking that the Applicant was under duress, the Board adjourned the hearing and caused the secretariat to contact the DLS about the Applicant’s legal representation.

13.At the resumed hearing, the Applicant was represented by the DLS. His counsel informed the Board that the Applicant did not want to give any further evidence or answer any questions from the Board or the Director’s representative.  To make sure that his choice was freely made and not under duress, the Board reminded him that adopting that course would very likely mean the Board would refuse his application for non-refoulement protection and took a brief adjournment for him to reconsider his position one more time.  At the resumed hearing, his counsel confirmed the Applicant’s decision not to testify. The hearing proceeded and concluded after hearing submissions from counsel of both parties. 

14.As set out in paragraphs 54 to 78 of the Decision, the Board had numerous questions which it wanted to explore with the Applicant about his case.  As regards his loan from the moneylender, the Board had doubt why being a successful businessman it was necessary for him to pay a bribe to obtain a bank loan and why he could not provide any guarantee.  It had query how his father knew to go to the moneylender’s house to beg for the Applicant’s release, and how he could escape from the two invasions of his home.  It also wished to hear his explanation as to why the Taliban presented a fear to him when, according to the country of origin information, they are no longer a real risk in 2021.  It also need clarification as to why he never provided the documents which he said he would provide.  It queried his evidence regarding whether he had a successful enough business that he ever need to take a loan from a criminal, given he seems to have had assets to fully compensate his customer and yet other assets he sought to sell to partially repay the moneylender.  The Board found his evidence inconclusive.  As regards his claim of fear from his customer, the Board wished to know why being a businessman in town L, the Applicant had a customer in town Q hundreds of kilometers apart and especially that the customer dealt with products, ie carpets which were outside what the Applicant usually traded, ie stationery.  It wished to seek clarification what assets the Applicant sold to compensate his customer and whether that amounted to all of his available assets and if he had assets to sell why he need to borrow from the moneylender to do business with the customer.  These are examples of some only of the many material queries which the Board had in mind to clarify with the Applicant.  As a result of his refusal to answer, the Board was left with the impression that his case of borrowing from the moneylender is not plausible and that his evidence regarding what happened after the abduction by the customer and that he had seemingly fully compensated the customer inconclusive.

15.The Board accepted the Applicant’s evidence about his marriage with a Christian woman, albeit the marriage was not registered and their relations ended in about May 2005.  It accepted they had a daughter who is a Muslim and was seventeen years of age at the time of the appeal, but he had not applied to the Family Court for parenting order.  It doubted his evidence before the first adjudicator that he had changed his faith to Christianity in order to marry the Christian woman as that is a first time allegation.  Even accepting that to be true, it found the Applicant had converted back to Islam as indicated in his torture claim form.  It further found on the basis of the COI that as both he and his daughter are Muslim, their risk of being harm by Muslim groups because of his marriage to the Christian woman rather remote.

16.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, the Board dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

17.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

18.The Applicant did not advance any grounds of application in his Form 86.  In his supporting affirmation, he only reiterated his danger returning to Pakistan.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove his fears and risk of harm.  For reasons as stated in the preceding paragraph, this is impermissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. 

Overall scrutiny

19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the 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. Notably, when the Applicant refused to answer the Board’s question, the Board alerted him of the inadequacies in his evidence and the need to provide further information to perfect his claim.  It resisted the Applicant’s repeated request to determine his claim without him providing further information.  It enabled him to have legal representation when the DLS had refused to act for him due to his default.  The Board assessed his evidence carefully, tested it against common sense and inherent probability.  It found his evidence inconclusive and implausible. It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational.  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

20.For the above reasons, the Applicant’s leave application is refused.

Dated the 31^st day of July 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 33 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)]