Faris Muhammad v. Torture Claims Appeal Board

HCAL 1654/2020

[2025] HKCFI 4914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1654 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 17 January 2020 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Pakistan who arrived in Hong Kong on 21 June 2009 as a visitor with permission to remain as such up to 11 November 2009 when he was arrested for using a faked travel document for departure, and for which he was subsequently convicted and sentenced to prison for 12 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local member of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Rana, Gujrat District, Punjab, Pakistan where he supported PML(N) and regularly attended their local meetings and activities.

3.In 2008, he assisted in PML(N)’s campaign for the Legislative Assembly Election, during which he and his fellow supporters discovered that the opposing PML(Q) candidate Mian had hired people to cast faked votes in his favour, and when they confronted Mian about his action, Mian became furious and made threats against him and his fellow PML(N) supporters.

4.After subsequently winning the election, Mian decided to take revenge against the Applicant and his fellow PML(N) supporters by making threats against them, and on one occasion when Mian and his followers ran into the Applicant in the street, Mian attacked him and struck him in the head with the butt of his pistol that the Applicant lost consciousness and fell to the ground, and was subsequently brought to the hospital for medical treatments.

5.On another occasion in April 2009 when the Applicant again ran into Mian in the street, he was threatened by Mian that next time he would shoot him with his gun.     

6.As a result, the Applicant became fearful for his life and fled to Lahore to take shelter in a friend’s place, and on 21 June 2009 he departed Pakistan for Hong Kong where he was subsequently arrested for using a faked passport and was sentenced to prison for 12 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 16 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 28 June 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.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 Mian or his followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Mian to seriously harm or kill him or to have any political reason to specifically target him given that the Applicant was just an ordinary PML(N) supporter without any official post in the party, nor is it accepted that there would still be any adverse interest in the Applicant after all these years since he left the country, that in any event in the absence of 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 204 million people spread across a vast territory of more than 770,000 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 where it would be difficult if not impossible for anyone to locate him.

9.On 10 July 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 January 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.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 Mian that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Mian to seriously harm or kill him or to have any political reason to specifically target the Applicant given that he was just an ordinary PML(N) supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 13 August 2020, 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 asserted that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so, nor did he request any oral hearing for his application.    

12.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.

13.As the last day of the three-month period for him to file his Form 86 fell on 17 April 2020, the Applicant was therefore almost 4 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.

14.In the Applicant’s case, a delay of almost 4 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 17 January 2020 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

15.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, 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 application 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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

18.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.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.

20.In the premises, as I am for the given reasons 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 22^nd day of October 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