Mahmood Sajid v. Torture Claims Appeal Board
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HCAL 1142/2022 [2026] HKCFI 5477 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1142 OF 2022 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: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant is a 52-year-old national of Pakistan who entered Hong Kong illegally on 22 April 2016 and was arrested by police on 24 April 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 gangsters/drugs dealers for having reported to the police of their criminal activities in his home village. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Chak Dolat, Khari Sharif Mirpur, Azad Kashmir, Pakistan. After leaving school he worked as a salesperson to make his living, got married and raised a family with 3 children in his home village. 3.He had always noticed a gang of drugs dealers coming from a neighboring village to sell drugs to the local villagers in his home village, of which he had twice reported to the police but to no avail as by the time the police arrived at the scene, those drugs dealers had already gone. 4.However, one day when the Applicant was shopping with his cousins in the home village, those drugs dealers confronted him with threats to kill him with their guns, but one of his cousins managed to snatch one of their guns away and fired a shot at them which hit one of the drug dealers who later died from his injury. 5.As a result, the Applicant and his cousins were arrested by police for the shooting, and were put under lengthy detention until eventually they were released on bail, but soon they started to receive death threats from those drug dealers in revenge for killing one of their people, whereupon the Applicant and his cousins became fearful for their lives and fled from their home village to hide in various places such as Karachi, Lahore and Islamabad. 6.As he feared of eventually being located by those drugs dealers, the Applicant on 10 April 2016 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 23 October 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 6 December 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”). 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 those drug dealers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from, that 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 Karachi or Lahore where it would be difficult if not impossible for anyone to locate him. 9.On 17 December 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be heard, the Applicant on 10 October 2019 in writing applied to the Board to withdraw his appeal, and upon being satisfied that his application to withdraw was freely sought, that he fully understood the consequences of the withdrawal, and that he had good reason to withdraw in that it was safe for him to return to Pakistan, the Board by a decision dated 15 October 2019 allowed his application and directed that his appeal be withdrawn and confirmed the Director’s decision as finally determined. 10.However, some 3 years later on 24 October 2022 the Applicant filed a 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, and in his supporting affirmation of the same date he stated as follows:
11.It is clear from the above that the Applicant some 3 years later has a change of mind about the earlier withdrawal of his appeal that he now wants to proceed with his appeal to the Board against the Director’s decision due to what he claimed to be a change of circumstances, but for which he should have made the necessary application to the Board in pursuance of Section 37ZE (2) of the Immigration Ordinance instead of seeking leave from the Court to apply for judicial review of that decision of the Board. 12.As such, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision to allow him to withdraw his appeal upon his request and for good reason, there is simply no reasonably arguable basis for the Applicant to now challenge that decision of the Board, never mind the serious delay of his such application, and as I am not satisfied that there is any prospect of success in his intended application for judicial review, I accordingly dismiss his application. Dated the 29th day of September 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
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