Hussain Waqar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1763/2020

[2025] HKCFI 5367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1763 of 2020

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 (Non-refoulement Claims) Teresa Wu:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 2 September 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 14 July 2020 (“the Board’s Decision”), confirming the Director of Immigration (“the Director)’s decision dated 26 September 2018 (“the Director’s Decision”), which dismissed the Applicant’s claim for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (USM).         

Background

2.The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by the Pakistan Muslim League (Nawaz) (PML(N)) upon return, together with the relevant immigration and procedural history, were set out in the Board’s Decision.  It is unnecessary to repeat them, and for completeness’ sake, reference can be made to that Decision, the hyperlink to which is included below[1].  Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.For the reasons set out below, I am not satisfied that the Applicant’s proposed judicial review is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  Accordingly, leave is refused.

4.I have reminded myself of the enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524at §14).  The Board, acting as the primary decision-maker, duly assessed the evidence, the COI information, the risk of harm, the availability of state protection, and the viability of internal relocation.  It then made determinations within its remit as follows:

(1)  It is evident from the Board’s Decision that the Board was aware of the Applicant’s claim and considered it on the basis of the materials available before it, including the Applicant’s written representations, the NCF, the record of interview, the Director’s Decision, the Notice of Appeal, the Director’s submissions, the hearing bundle containing the additional information including the COI, and the Applicant’s oral evidence at the hearing before the Board. 

(2)  The hearing before the Board was originally scheduled for 31 October 2019.  As the Applicant was unable to attend on that date, and having considered his response, the Board determined that it was reasonable to reschedule the hearing to 8 January 2020.  The Applicant attended on that date with the assistance of an interpreter proficient in both English and Urdu, through whom he was able to give his evidence and present his case fully before the Board.

(3)  The Applicant claimed that, due to his involvement with PML(Q), a centre-right nationalist political party in Pakistan, particularly during the 2015 elections, he was seriously harmed and threatened, and consequently fled from Pakistan to Hong Kong.  The Board accepted that political violence had occurred throughout Pakistan at different times, and had regard to the factors discussed in relation to the assessment of the Applicant’s credibility.  However, the Board, having considered the evidence, was not satisfied that the Applicant was a truthful witness.

(4)  The Board found that the Applicant’s claim regarding his alleged involvement with PML(Q) and his assertion that he was sought by the then opposition party, PML(N), was untruthful.  The Board did not accept that the Applicant had participated in an election campaign in 2015, nor that he was attacked by members of PML(N).  While the Applicant may bear a scar, the Board did not accept that it was caused as a result of any such attack.  Nor did the Board accept that the Applicant subsequently went into hiding or fled from Pakistan because he was located and shot in Lahore.  The Board held that the Applicant left Pakistan and fabricated claims for non-refoulement protection in Hong Kong for reasons unrelated to those advanced in his application.   

(5)  The Board concluded that the Applicant did not have any genuine fear of harm in Pakistan from PML(N), which was no longer in power in Punjab or nationally.  In any event, the Board found that persons from PML(N) or any other political parties would have no interest in pursuing the Applicant upon his return to Pakistan.  The Board was therefore not satisfied that there were substantial or strong grounds, or a real chance or real risk, that the Applicant would suffer harm amounting to torture, CIDTP / torture, a risk to his life, or persecution due to any past involvement with PML(Q).

(6)  Based on these findings, and for these reasons, the Board found that the Applicant was not entitled to non-refoulement protection in Hong Kong on any of the grounds under the Unified Screening Mechanism (USM).

5.Apart from expressing “strong disagreement” with both the Board’s Decision and the Director’s Decision, the Applicant has not identified or demonstrated any error of law, irrationality, or procedural unfairness.  Nor am I satisfied that any such ground has been established.  Conversely, the Board acted squarely within its jurisdiction, having carefully evaluated the relevant evidence and applied the governing legal principles.  For completeness, it should be noted that the Director’s Decision is not subject to judicial review in any event.  In the absence of any valid public law grounds, the Court should not interfere (see Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

Conclusion

6.Accordingly, the Leave Application is dismissed.

Dated the 10^thday of December 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