Case Document

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HCAL 811/2025

[2025] HKCFI 3245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 811 OF 2025

BETWEEN
	Ali Babar	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 November 2024 be refused; and

2. The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegally on 29 July 2023 and surrendered to the Immigration Department on 3 August 2023 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his former business partner over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Attock, Pakistan. After leaving school he worked as a vehicles mechanic to make his living, got married and raised a family with 3 children in his home district.

3.In 2022 he started a transportation business in partnership with a friend Rashid by contributing equally for the purchase of a truck for their business, but one day in December 2022 their truck was stolen, and as a result they lost their business, but for which Rashid blamed the Applicant and demanded for the return of his share of the purchase money, and when the Applicant refused, Rashid became furious and made threats against him.

4.One day in February 2023 while he was riding a motor bike, the Applicant was hit by a vehicle from behind that he fell and injured his hip and was taken to hospital, while the driver just drove away and disappeared that the Applicant suspected that he was sent by Rashid to kill him, and of which Rashid subsequently admitted on the phone and threatened that next time the Applicant would be killed if he still failed to return the purchase money to him.

5.As a result the Applicant became fearful for his safety and fled to Karachi and then Lahore, and in July 2023 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 November 2023 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 24 January 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his former business partner Rashid upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Rashid to seriously harm or kill him other than to press him to return the money to him, that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 250 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for Rashid to locate him.

8.On 2 February 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 20 August 2024 and 10 September 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 November 2024, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any former business partner over any monetary dispute that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of Rashid to seriously harm or kill him other than to press him to return the money to him, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 April 2025, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim of his dispute with Rashid in details as before but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

11.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for him to file his Form 86 fell on 19 February 2025, the Applicant was therefore 1 ½ months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of 1 ½ months must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was then in prison and was not aware of the deadline for the filing of his application, and when he later found out about it, he was already out of time with his application.

14.The record shows that the decision was sent on the same day of 19 November 2024 to the Applicant then at Pik Uk Prison without being returned through undelivered post, and as ignorance of the procedural rules can never be accepted as any justification for their non-compliance, while assistance and support are readily available to all inmates in prison or detention centers, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

15.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended challenge either.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

17.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 7^th day of August 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7 August 2025 Ali Babar Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22918 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1484/23 (formerly RBCZ 5001459/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)