Rashid Hafeez v. Non-refoulement Claims Petition Office and Another

HCAL 762/2020

[2025] HKCFI 3069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 762 of 2020

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 the Applicant being absent at the hearing in open court.

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Non-Refoulement Claims Petition Office be named as the 1^st Putative Respondent; and

b.   the Director of Immigration be named as the 2^nd Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 April 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 9 April 2020 (the “Board’s Decision”); and (ii) a decision of the Director of Immigration (the “Director”) dated 27 July 2018 (the “DOI Decision”). Both rejected the Applicant’s non-refoulememt claim on all applicable grounds except torture risk.

2.To ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.The Applicant had requested an oral hearing for the Leave Application. The oral hearing of the present application (“Hearing”) took place before me on 14 July 2025. Yet the Applicant did not attend the Hearing. Notwithstanding his absence, I shall proceed to consider the Leave Application on paper.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In short, the Applicant claims that his life would be in danger if he returns to Pakistan because of his work as an imam of the Sunni Muslim faith.

Discussion

5.It is well established that the judicial review is not a further avenue of appeal.  Though in non‑refoulement cases, the court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Fact-finding, including assessment of evidence, country of origin information (“COI”), 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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.In the Form 86, the Applicant did not provide any grounds in support of the Leave Application.

7.In his supporting affirmation, the Applicant merely said he that his life is still in danger if he returns to Pakistan and that the Board’s Decision was based on “false reports” on social media.

8.Before considering the substantive merits, I should point out that the proposed challenge against the DOI Decision is misconceived. As the appeal before the Board was conducted by way of a re-hearing, the DOI Decision is superseded by the Board’s Decision, see: see: Re Moshsin Ali [2018] HKCA 549 at §45.

9.Having considered the Board’s Decision with anxious scrutiny, I am not satisfied that there were any reviewable errors including the alleged falsity of the materials relied upon by the Board. Adequate reasons were provided in the Board’s Decision which was comprehensive and contained a detailed analysis of the evidence before it.  In particular, the Board was plainly correct in making the following findings:-

(1)  The Applicant’s allegation that he was under threat of violence from Shia Muslims was rejected in light of his unsatisfactory account of past incidents of violence against him and his family or fellow Sunni Muslims. (§§36-47).

(2)  The Board also took into account COI information which suggests that in general Shias and Sunnis have lived in relative peace in the area around Mochi Darwaza (the area where the Applicant previously lived in) (§38).

(3)  Although the Board was prepared to accept that the Applicant was previously assaulted, due to concerns as to the plausibility of his evidence, the Board did not accept that the assault was motivated by the conflict between Sunni and Shia Muslims (§51).

10.The Applicant’s contention that he did not have protection in Pakistan or that he could not relocate to other parts of the country is a bare assertion not supported by credible evidence.  It was not irrational for the Board to find that state protection would be available in any event or that the Applicant can be relocated to other parts of the country such as Islamabad, Faisalabad or Rawalpindi (§§58-59, 67-69, 78 of the Board’s Decision), in particular given that:-

(1)  There is no credible COI information to suggest that the Pakistani police and government would be prone to Shia influence.

(2)  In fact, Shia Muslims are only a minority in Pakistan, accounting for only 10-25 per cent of Pakistan’s population of 207 million people.

(3)  The Applicant was not of any particular high profile such that he would continued to be targeted by Shia Muslims by reason of a localised dispute which occurred many years ago.

(4)  There would be no reason why he could not continue his work as an imam in other areas of Pakistan.

11.The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

12.Despite the claim by the Applicant that the Board relied upon “false” information, he has failed to provide any elaboration in this Form 86 or supporting affirmation of the same and I unable to accept his bare assertion after having reviewed the Board’s Decision.

13.Hence, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

14.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). 

Conclusion

15.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

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