Ahmed Iftikhar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3211/2019

[2025] HKCFI 3128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3211 of 2019

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant applies for leave to apply for judicial review of 2 Decisions of the Director rejecting his non-refoulement claim on the applicable risks stated below (the Director’s Decisions”) and a Decision dated 5 June 2017 of the Torture Claims Appeal Board (“the Board’s Decision”), which superseded the Director’s Decisions. His application against the Director’s Decision are therefore dismissed in limine. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 September 2017. His application was filed on 29 October 2019, which is late for more than 2 years. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 9 June 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, aged 48, is a national of Pakistan. He had come to Hong Kong and was repatriated before. The last time he came to Hong Kong and was arrested by police was on 15 January 2014. He admitted that he sneaked into Hong Kong from the Mainland by boat. He was referred to the Immigration Department where he raised his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by (i) three brothers in revenge since their brother named Abdul Ghaffar was shot dead in his rickshaw in or about September 2007, and (ii) the relatives of Mudassar since he was an accused of being a murderer of Mudassar in May 2013. He also feared that he would be arrested and tortured by the police because the three brothers framed him up as the murderer of Mudassar.

5.According to the applicant, Abdul Ghaffar was in his rickshaw and several people came to shoot and kill him. The three brothers reported to police accusing him to be the murderer. They had also framed him up as the murderer of Mudasser. He was taken to the police station where he was tortured by the police officers. He attempted to hide himself up by living in his friends’ places. Upon his friends’ advice, he left Pakistan for Hong Kong.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 August (“the Director’s Decision”).

The Director’s Decisions

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.The Director refused the applicant’s claim for the reason that it was unsubstantiated. Besides, he also found that state protection will be available and internal relocation is viable if he returns to Pakistan, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 2 May 2017, the Board conducted an oral hearing and he gave evidence. The Board had made an extensive enquiry on the facts of the applicant’s claim.

10.Having considered the applicant’s evidence, the Board had made the findings that the applicant was not a reliable witness. It did not accept that he was involved in the shooting of Adbul Ghaffar or he was tortured by the police. It also did not believe that his family members were harassed by his enemies. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003211_2019_files/the_Board's_Decision.pdf.

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

11.The applicant has filed Form 86 dated 29 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant has, insofar as the Board’s Decision is concerned, raised the grounds summarized below.

(1)  He did not have legal assistance for his appeal to the Board. Nor did he have the language assistance as English is not his first language.

(2)  The adjudicator has exercised his case management power wrongfully that he was not having legal or language assistance.

(3)  The Board did not set out the fully reasons for the Board’s Decision.

(4)  The adjudicator had made baseless assumptions towards his case.

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.

17.As to the grounds under paragraph 12, Grounds (1) and (2) fail as the applicant was not entitled to free legal assistance at all stages of the proceedings.[2] He was also not entitled to have interpretation service all the time.[3] Ground (3) is not true as the Board had given its reasons in support of its decisions in the Board’s Decision. They are sufficient to enable the applicant to understand the reasons and to make his decision whether he should make application for judicial review. Ground (4) is his bare assertion without any evidence in support.

18.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

19.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.

Dated the 20^th day of August 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