Zafar Adnan v. Torture Claims Appeal Board

HCAL 1867/2020

[2026] HKCFI 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1867 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 30 October 2019 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 31 December 2015 and was arrested by police on 1 January 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kanoha, Tehsil Kalar Saidan, Rawalpindi, Punjab, Pakistan. After leaving school he worked as a welding assistant in his home district to make his living, and supported PTI regularly attended their local meetings and activities.

3.In December 2015, during a local mayor election in his home district, and while assisting in the PTI campaign for their candidate, the Applicant and his fellow supporters suspected that the PML(N) people were trying to manipulate the voting result for their candidate, and made a report to the election officers but to no avail, and after the PML(N) candidate won the election, their supporters started to act aggressively against the PTI supporters by threatening and attacking them with wooden rods and other weapons, and on one such occasion the Applicant suffered cuts and bruises all over his body which required medical treatments in a local clinic.

4.As a result, the Applicant became fearful for his life and fled to Karachi, and on 24 December 2015 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 February 2018 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 27 February 2018, 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”).

6.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 those local PML(N) supporters 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 those local PML(N) supporters to seriously harm or kill him or any political reason for them to specifically target him for harm given that he was just an ordinary PTI supporter without any official post in the party, 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 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 anyone to locate him.

7.On 9 March 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 22 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 October 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.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 local PML(N) supporters due to any political dispute that caused him to leave his country to come to Hong Kong to seek protection, that he possessed so little knowledge about PTI which he claimed to have supported for years that it is not accepted that he was ever a PTI supporter or to have any political involvement or connection with PTI at all prior to his departure of Pakistan, that even if his claimed political activities were true that there was no reliable evidence of any real intention of those PML(N) supporters to seriously harm or kill him or to have any political reason to specifically target him given that even on his own case that he was just an ordinary PTI supporter without holding 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.    

9.On 18 September 2020, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Board reached the decision wrongly in assessing his non-refoulement claim;

(2)   That the Board’s decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.

10.By then the Applicant was however 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 30 January 2020, the Applicant was therefore some 7 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.

12.In the Applicant’s case, a delay of 7 ½ months must be considered as very substantial and inordinate, for which he asserted at the hearing of his application that he was in prison for some criminal offence from March 2019 to September 2020, and that it was during which that he was informed by his lawyer of the Board’s decision, but by then he was already out of time with his intended application. The Applicant did not produce any documentary evidence to corroborate his such assertions.

13.The record shows that the Board’s decision was sent on the same day of 30 October 2019 to his then reported address at Yuen Long without being returned through undelivered post, and as noted above that the Applicant attended an oral hearing on 22 July 2019 before the Board during which he never mentioned anything about being incarcerated in prison.  As such, and in the absence of any reliable evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good explanation or justification for his such serious delay.

14.As for the merits, if any, of his intended application, those 2 grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy were state acquiescence or extra-judicial killings to his case at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his Form or at the hearing of his application, I do not find either of them reasonably arguable for his intended challenge.

15.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.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility 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.

17.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.

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 or justification for his serious delay with his application, I refuse to extend time and accordingly dismiss his leave application.

Dated the 15^th day of January 2026

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