Pahat Muhammad Ali Alias Muhammad Ali Pahat Alias Waseem Qayyum Pahat Alias Eahtasham Qayyum Pahat Alias Kashif Ali v. Torture Claims Appeal Board
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HCAL 982/2026 [2026] HKCFI 4454 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 982 OF 2026 BETWEEN
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:
Observations for the Applicant: 1.The Applicant is a 50-year-old national of Pakistan and a repeated offender of illegal entry and staying in Hong Kong under various false identifications and travel documents and was invariably repatriated to Pakistan upon his arrest by the police, again sneaked into Hong Kong on 29 January 2004 and was arrested by police some 3 years later on 7 January 2007 for various offences, and for which he was convicted and sentenced to prison for 15 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 leader and supporters of the political party Pakistan Muslim League (N) (“PML(N)”) over some election dispute with his elder brother who was a member of rival party Pakistan People’s Party (“PPP”), and after his torture claim was rejected, the Applicant then sought non‑refoulement protection on the same basis, and after his non-refoulement claim was also rejected on all the remaining applicable grounds under the Unified Screening Mechanism (“USM”) and had exhausted all his legal challenges by way of judicial review to the Court of First Instance and appeal to the Court of Appeal, he then raised a subsequent claim again for non-refoulement protection under all the applicable grounds. Previous Non-refoulement Claim 2.The Applicant was born and raised in Village Ahsul Suleman, District Lahore, Pakistan. After leaving school he assisted in his family’s farming in his home village where his family traditionally supported PPP and that his father was once the local PPP president in Lahore, and that his elder brother Nadeem as a PPP candidate was elected the chairman of the Union Council of Pandokey. 3.In 2001 when Nadeem stood for re-election, the Applicant as a PPP supporter also assisted in his brother’s election campaign against a PML(N) candidate by the name of Mansha, during which the Applicant and his fellow PPP supporters were met with violent confrontations from PML(N) supporters led by Mansha’s righthand men Mushtaq and Bakhtawar, and resulted in many injuries amongst the PPP people caused by gun shots fired by the PML(N) people including the Applicant that required medical treatments in the local hospitals. 4.As a result Nadeem reported the shootings to the police which led to arrest warrants being issued against Mansha’s said assistants Mushtag and Bakhtawar who then went into hiding, and after Mansha subsequently won the election, he considered Nadeem as his main political rival, and made threats against him and his family, and to avoid the conflicts, the Applicant in September 2001 left the country to come to Hong Kong on a passport with a false identity, and was subsequently arrested and repatriated to Pakistan in November 2001. 5.Upon returning to his home village, and on one occasion when he was attending a religious festival in 2002, the Applicant and his family endured another shooting attack by Mansha’s assistant Mushtaq who was in fact still running from the police warrant issued against him for the earlier shooting in 2001, during which one of the Applicant’s brother Naeem was hit and was subsequently hospitalized for gunshot wounds. 6.On another occasion in 2003 while driving the car of his elder brother Nadeem, the Applicant and another brother were shot at by some unknown assailant who was suspected to be targeting Nadeem, and while the Applicant managed to escape unharmed, his other brother suffered serious injuries and was hospitalized, and so the Applicant became fearful for his safety and in March 2003 departed Pakistan again for Hong Kong under another passport of a false identity, but was arrested shortly thereafter and repatriated to Pakistan in May 2003. 7.As he still feared of being harmed or killed by Mansha and his PML(N) people, the Applicant in January 2004 again departed Pakistan but this time for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police some 3 years later in January 2007, he raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 8.By a Notice of Decision dated 23 June 2017 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”). 9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed by Mansha or his people of the PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Mansha or his people to seriously harm or kill him or to have any adverse interest in him in Mansha’s political dispute with his elder brother Nadeem and that the Applicant was never a target at all or for any political reason or otherwise while in Pakistan, that in any event in the absence of any official involvement in the dispute between Mansha and the Applicant’s elder brother Nadeem 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 201 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 Islamabad where it would be difficult if not impossible for anyone to locate him. 10.On 7 July 2017 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 19 November and 3 December of 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 11.In its decision the Board gave the Applicant the benefit of the doubt of his claim of political dispute between his elder brother Nadeem and the local PML(N) leader Mansha in Pakistan but found significant inconsistencies and discrepancies in his evidence of any threats against himself while in Pakistan that it doubted his claim of fear of harm from Mansha and his PML(N) people that caused him to leave his country to come to Hong Kong to seek protection, and that in any event it was a private dispute between Mansha and his brother Nadeem only without any political reason for the PML(N) people to have any adverse interests in the Applicant or to specifically target him for harm given that he was just an ordinary PPP supporter without any official post in the party or any reliable evidence of any real threats ever being made or directed against the Applicant prior to his departure of Pakistan, and in the absence of any official involvement in such dispute between Mansha and Nadeem that state protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation available 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 on all the applicable grounds. 12.The Applicant’s subsequent application for leave to apply for judicial review of the Board’s decision was then refused by this Court on 26 July 2023 upon finding none of his proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 2700/2019 [2023] HKCFI 1922). 13.Meanwhile in between 2016 and 2023 while released on recognizance pending the determination of his claim, the Applicant was arrested, charged and convicted on various occasions for a total of 12 counts of criminal offences, and for which he was sentenced to prison for various terms ranging from 3 weeks to 10 months, and upon his discharge from prison for his last conviction, he had been placed under detention by the Immigration Department pending the execution of the removal order that has been made against him. 14.After his leave application for judicial review of the Board’s decision was refused by the Court, the Applicant’s subsequent appeal against that decision was also dismissed by the Court of Appeal on 17 July 2025 upon finding that his submissions consisted entirely of just general statements of the law and bald assertions of procedural unfairness which revealed no substance of any error of law or procedural unfairness in the Court’s decision and that there was no prospects of success in his intended appeal (CAMP 130/2024 [2025] HKCA 657). First Request to make a Subsequent Claim 15.While still in the course of his appeal to the Court of Appeal, the Applicant in November 2023 wrote to the Immigration Department requesting to make a subsequent claim under Section 37ZO of the Immigration Ordinance, Cap 115 on the bases that he had been informed by his family in Pakistan that they were able to locate Mansha’s assistant Mushtaq in 2022 who had confessed that his target was in fact to kill not just the Applicant’s elder brother Nadeem but also the Applicant himself as well, and hence the Applicant feared that if refouled to Pakistan he would be killed by Mushtaq or other men sent by Mansha, that he has since married a wife in Hong Kong and hence to remove him would mean breaking up his family, and that his family in Pakistan had since switched their political support for another political party Pakistan Tehreek-e-Insaf (“PTI”) whose founding chairman Imran Khan had won the 2018 general election to become the Prime Minister but was subsequently removed in 2022 by a no-confidence motion amidst allegations of corruptions, of which the Applicant had then criticized and attacked the Pakistani government on the social media, and as a result he also feared of being arrested and prosecuted by the authorities upon his return to Pakistan. 16.By a decision dated 30 April 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that his asserted basis of fear of harm from Mansha and his PML(N) people was essentially the same as that of his previous claim and which did not amount to any significant change of circumstances since his previous claim was finally determined, while his argument of possible breaking up of his family in Hong Kong if he was refouled to Pakistan even if true would not entitle him to non‑refoulement protection under any of the applicable grounds, and that his claimed fear of being arrested and prosecuted by the authorities upon his return to Pakistan due to his criticisms made against the government on social media was not supported by any reliable evidence and that even if true that it was just based on his own groundless suspicions and speculations in the absence of any evidence of any adverse interests that the Pakistani authorities may have in him. Second Request to make a Subsequent Claim 17.Several months later in September 2024 the Applicant made a second request to the Immigration Department to again make a subsequent claim as he had been informed by his family in Pakistan that another brother of his by the name of Afzaal in Pakistan also became involved in politics and supported PTI, and after losing in the 2024 election to be a member of the National Assembly, Afzaal complained to the authorities of what he suspected to be vote fraud against him, but for which he was subsequently arrested by police and interrogated for the Applicant’s whereabouts before eventually being released, and of which the Applicant suspected was part of the Pakistani government’s attempts to suppress protests by PTI supporters including the Applicant’s criticisms over the removal and arrest of former Prime Minister Imran Khan, including the subsequent abduction of Afzaal by the police superintendent of Lahore and the routine harassments and intimidations conducted against the Applicant’s family in Pakistan as well as a subsequent charge of terrorism filed against Afzaal for acting against the state that the Applicant feared on his return to Pakistan that he will also be arrested and prosecuted by the authorities over his previous criticisms of the government’s actions against former Prime Minister Imran Khan. 18.The Director subsequently allowed the Applicant to proceed with his subsequent claim on all the applicable grounds under the USM, and for which he attended a screening interview before an immigration officer with legal representation from DLS. Director’s Decision on the Subsequent Claim 19.By a decision dated 3 November 2025 the Director rejected the Applicant’s subsequent claim on all the applicable grounds after taking into all the relevant circumstances of his claim of fear of being harmed or killed by his perceived enemies and/or arrested and persecuted by the police and Pakistani authorities upon his return to Pakistan and assessed that the level of such risk to be low due to the absence of any such threats directed against him or of any evidence of any adverse interests of anyone including the Pakistani authorities in him who had been out of the country for more than 20 years since 2004 and without any evidence of any political activities in Hong Kong that it is not accepted that there would be any political reason for the Pakistani authorities or anyone to target him for harm, that his claim of having criticized the Pakistani government on social media over its actions against former Prime Minister Imran Khan was just a bare and bald assertion uncorroborated by any documentary evidence, that his credibility was further undermined by his failure to raise his previous claim of fear of harm from Mansha and the PML(N) people upon his first arriving in Hong Kong until at least more than 3 years later and only after his arrest by the police in 2007, that even if his such claim were true that there was no reliable evidence of any intention of the Pakistani authorities to arrest or prosecute him upon his return to Pakistan other than just his own groundless suspicions and speculations, and that even if his claimed risk of harm from Mansha were real after all these years that it is a localized one that it is not unduly harsh for him to relocate to other parts of the country away from his home district in large cities where it is difficult if not impossible for anyone to locate him. Appeal to the Board 20.On 17 November 2025 the Applicant again lodged an appeal to the Board against this decision of the Director, and for which he submitted some 990 pages of documents and materials in support of his claim, and attended again 2 oral hearings on 11 December 2025 and 11 March 2026 before the Board during which he also gave evidence and answered questions raised of his claim by a different Adjudicator from his previous claim. On 24 April 2026 his appeal was dismissed by the Board which also confirmed the Director’s decision. Board’s Decision on Subsequent Claim 21.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence as regard his subsequent claim as well as those with his previous claim that it doubted the credibility of his claim of fear of harm from his claimed enemies or the Pakistani authorities, that there was never any reliable evidence of any threats or risk of any harm from anyone for political reason or otherwise directed against him in either his previous claim or subsequent claim or any political reason for there to be any adverse interest from anyone in him given the fact that he has been out of his home country and without any political involvement or activities for more than 20 years since his arrival in Hong Kong, that his submitted documentary evidence of what had allegedly happened to his family in Pakistan since his departure even if true do not in any way implicate him or infer any adverse interest from anyone in him that may give rise to any credible risk of being harmed or arrested or persecuted by the Pakistani authorities or anyone upon his return to Pakistan, that those COI submitted by him coupled with other relevant COI available before the Board do not in any way support the Applicant’s subsequent claim of such risk that he may face if refouled to Pakistan, and that as correctly found in his previous claim that relevant COI show that both state protection and reasonable internal relocation alternatives will be available to the Applicant to negate what risk that he may still face from Mansha or his people after all these years upon his return to Pakistan that it concluded that his subsequent claim for non-refoulement protection also failed on all the applicable grounds. Application for Judicial Review as regard Subsequent Claim 22.On 28 May 2026 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date and his subsequent written submissions attached numerous documents presumably either extracted from the hearing bundle for his earlier appeal before the Board or never been produced to the Board for its consideration and hence not admissible for the purpose of his present application, the Applicant upon citing various laws and legal principles applicable to claims for non-refoulement protection and repeating his claims and assertions as before, proceeded to put forward various grounds and complaints against the decisions of both the Director and the Board for his intended challenge, but given the fact that the Director’s decision is no longer susceptible to judicial review once an appeal to the Board is being pursued by a claimant: see Re Moshsin Ali [2018] HKCA 549, I shall accordingly treat his challenge as only against the Board, and which can be summarized as follows:
23.These are however again all just bare and bald assertions of the Applicant containing numerous key words and phrases as well as repeated regurgitations of his claims as before but without any relevant particulars or specifics or elaborations as to how they exactly 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 Board had acted procedurally unfair or irrational, or how did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge. 24.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. 25.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to 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, of which the Board was entitled to and did take into account various findings as to his credibility and facts made by both the Director and the Board in relation to his previous claim under Section 37ZP(3) of the Immigration Ordinance as well as those made by the Court of Appeal in his appeal arising from his previous claim to undermine the credibility and/or merits of his intended challenge under his subsequent 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. 26.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm from Mansha or the local PML(N) people 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, as already correctly found and unchallenged in his previous claim, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 27.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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application. Restricted Proceedings Order 28.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Court of Appeal as noted above ([14]), but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before or some invalid bases, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him. 29.Section 27 of the High Court Ordinance, Cap 4 provides as follows:
30.Relevantly, Section 27A also provides:
31.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re‑open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section. 32.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]). 33.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]). 34.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary. 35.Accordingly, I make the following order:
Disposition 36.The Applicant’s application for leave to apply for judicial review is dismissed. 37.A RPO in terms of paragraph 35 be made against the Applicant. Dated the 11th day of August 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
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Cases cited in this judgment