Ahmed Gulzar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 808/2022 [2026] HKCFI 5804 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 808 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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicants’ application by Form 86 filed on 22 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 1 June 2022 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing his application for non‑refoulement protection. 2.The Applicant had requested an oral hearing. A hearing on 7 September 2026 was scheduled and notice of hearing was sent to him by post on 19 August 2026 to his address as stated in his Form 86 which is also his last known address discovered from the Immigration Department on 9 March 2026. The notice has not been returned in the course of mail. The Applicant had never informed the court of any change of address since filing his Form 86. There is nothing to suggest that he had not received either of the notice of hearing. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice. He did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. 3.The Applicant is a Pakistani national, now aged 46. On 20 February 2013, he was arrested by the police for remaining in Hong Kong illegally and referred to the Immigration Department. He claimed to have departed Pakistan for the Mainland on 2 September 2012 and then sneaked into Hong Kong on 17 February 2013. He raised a claim for protection under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). His Torture Claim was rejected by the Director on 24 June 2013. That decision is now final. In 2018, he made a claim for non-refoulement protection. His non-refoulement claim was assessed on all applicable grounds under the Unified Screening Mechanism (“USM”) other than Torture Risk ground, ie risk under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2”) ground[1] (“BOR 2 Risk ground”), risk under Article 3 of the Hong Kong Bill of Rights Ordinance (“BOR 3”) ground[2](“BOR 3 Risk ground”) and Persecution Risk grounds[3]. The claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. The Applicant’s claim 4.The Applicant’s personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[4] for reference. In gist, he claims, if returned to Pakistan, he will be harmed or killed by two members or supporters of the Pakistan People’s Party (the “PPP”), identified as “B” and “N” because of his pursuit against them for the murder of his cousin, Amjad. 5.The Applicant’s family are supporters of the Pakistan Muslim League (Q) (the “PMLQ”). The PMLQ and the PPP are antagonising political parties. Supporters of the two parties often had fights and arguments. Sometimes, they resolved their differences by arbitration. On 29 May 2005, a fight broke out between supporters of the two parties on the street in which one man from each party was seriously injured. The Applicant was not involved in the fight but three of his cousins were. On the following day, ie 30 May 2005, an arbitration session was arranged to resolve a killing incident between members of the PMLQ. Suddenly, six PPP members including B, N and another identified as “J” (the “Group”) entered. At the shout of one of the Group, B, N and J fired at the Applicant’s three cousins, killing two of them. According to the post-mortem report, one of his cousins, Amjad, was killed by B and N, while the other cousin was killed by J. B, N and J were arrested and sent to prison. At the time, the PMLQ was in power. 6.The PPP came into power in 2007. In 2008, B and N were acquitted while J was sentenced to death. The Applicant suspected that the PPP had an arrangement to have J admitting the murder rather than for all three of them to be convicted and sentenced. After the release of B and N, the Applicant and Amjad’s father, ie the Applicant’s uncle (the “uncle”), kept complaining to the police about the death of Amjad and wanted to have B and N detained. The Applicant received five or six threatening telephone calls from the Group. Sometimes, the Group sent people to his and his uncle’s homes and warned them to mind their own business. 7.In 2008, the Applicant received a threatening call from B and N warning them to stop pursuing Amjad’s death. In 2012, he received another threatening call from them saying “now it’s your turn.” In March 2012, the Applicant’s uncle went missing and was later found in the jungle with a serious injury on his head. His uncle was taken to the hospital and died after two days. The Applicant was sure that his uncle had been attacked by B and N as he had no other enemies, while B and N had been making threatening calls to him and his uncle. However, the police refused to take any action against B and N. The Applicant believed that was because the PPP was in power. 8.On 2 July 2012, B and N and their associates went to the Applicant’s house. The Applicant was not at home. B and N fired shots in the air. The Applicant did not complain to the police as he believed the police would not listen to him. 9.The Applicant moved to Lahore in 2008 which is five hours away from his home village by bus. He returned to his home village once every three or four months. Apart from the oral threats, there was no incident of B and N or the Group doing anything to endanger his life. After his uncle’s murder, he left Pakistan in September 2012. The Board’s finding and the Court’s observations 10.At the hearing, the Applicant adopted the contents of his torture claim form and the three screening interviews and the supplemental claim form. He confirmed the contents are true and accurate and elected not to give evidence as he had nothing else to add. In its discussion of the evidence, the Board found much of the Applicant’s evidence incredible. However, it assessed his claim strictly on the basis of the evidence of the case as the Applicant asserted, stripped of his speculations, beliefs or bare assertions; and on some finding of fact based on the Applicant’s evidence and country of origin information (“COI”). 11.The Applicant received five to six threatening calls from the Group in the four years between 2008 and 2012. The threats were all verbal. He had never been physically assaulted. His uncle’s son who lived in Lahore was also safe. None of his family members who stayed in the home village was harmed by B or N. 12.The Board accepted the Applicant’s evidence that the police did not arrest or detain B or N after their release. It accepted that the police could not entertain the Applicant’s and his uncle’s complaint as B and N were acquitted by the court. It also accepted the Applicant’s evidence that the police refused put down B’s and N’s name in the First Information Report as suspects of the attack on his uncle. The uncle was seriously injured when he was found. He did not and could not have told the Applicant who his assailants were. It was only the Applicant’s belief or suspicion that his uncle was attacked by B and N. There was absolutely no supporting evidence for his belief or suspicion. The Board found there was reasonable explanation for the police not to take any action against B and N. In view of that and in the light of the COI, it found adequate state protection was available and would be available to the Applicant on his return to Pakistan and there was no indication that he would not be able to access protection. It also found, given the geographical and population size of Pakistan, the Applicant could relocate to other cities in Pakistan such as Lahore where he had lived and worked without any problem for four years and it would not be unduly harsh for him to so relocate. 13.The Board noted the Applicant’s evidence that B and N never looked for him immediately after he left Pakistan, but only did so after he submitted his supplemental claim form seeking protection in Hong Kong. It also noted that the Applicant told the immigration officer in his third screening interview that B and N were no longer supporters of PPP but had switched to support the Pakistan Muslim League (N) (the “PMLN”). Having regard to the totality of the evidence, the Board found that B and N were not looking for the Applicant at present. It came to the conclusion that on the totality of the circumstances the Applicant had failed to prove there was a real likelihood for his feared risk to materialize. 14.In respect of BOR 2 Risk ground, the Board said in paragraph 67 of its Decision that to succeed under this ground, it must be shown that there is a substantial risk that B and N will kill him. It held in paragraph 68 that as the Applicant had failed to prove the primary facts on how likely the feared risk would materialize and as in any event sufficient systemic protection is available, the Applicant’s claim under this ground failed. 15.For the same reason, the Board found in paragraphs 70 to 73 that the Applicant’s claim under BOR 3 Risk ground failed. 16.As for Persecution Risk ground, the Board found the Applicant’s dispute with B and N is a private dispute and his feared risk is not on account of one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention reasons”). His claim under this ground also failed. Legal principles applicable to judicial review 17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Grounds for judicial review 18.The Applicant did not advance any grounds of judicial review in his Form 86. In his supporting affirmation, he asserted that he was a victim of disputes between political parties and had to run away from his home country. This is in effect a challenge of the Board’s finding of fact that his dispute with B and N is a private personal dispute, that he had failed to prove there was a real likelihood for his feared risk to materialize and the feared risk is not on account of a Convention reason. This challenge is not permissible save for errors of law, procedural unfairness and irrationality in the Decision. The Court will bear this ground in mind in its overall scrutiny of the Decision. Observations on the Board’s failure to warn the Applicant that some of his evidence would not be accepted when he elected not to testify 19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court notes, as mentioned in paragraph 10 above, that the Board accepted the Applicant’s option not to testify because everything relating to his claim is contained in the hearing bundle. It did not advise him that there are aspects in his evidence which may not be credible or acceptable by the Board or to discuss his evidence with him in greater depth to explore the existence of other evidence which would support his claim. It would have been more desirable had the Board warned him that his speculations, beliefs or bare assertions may not be accepted. However, in view of its total acceptance of the Applicant’s evidence subsequently (though net of his speculations, beliefs or bare assertions, which are in any event inadmissible) and his confirmation that he had nothing else to add, this Court does not consider the omission under the specific circumstances amounted to any breach of the high standard of fairness required in this sort of proceedings or failure in discharging its duty of joint endeavour. Observations on the Board’s Decision under BOR 2 Risk ground 20.This Court is also concerned if the Board had misconstrued BOR 2 or misunderstood the law applicable to BOR 2 Risk ground. In its discussion of the law, the Board said in paragraphs 20 to 22 of its Decision:
As summarized in paragraph 14 above, the Board said in paragraph 67 of its Decision that to succeed under this ground, it must be shown that there is a substantial risk that B and N will kill the Applicant. Then, applying the test it formulated in paragraph 22 of its Decision, the Board held in paragraph 68 that the Applicant’s claim under this ground failed. 21.The Board quoted no authorities to support the test it formulated for BOR 2 Risk ground. With respect to the Board, its test as stated in paragraph 22 of its Decision is incorrect and contrary to well established authorities. BOR 2 mirrors article 6 of the International Covenant on Civil and Political Rights (“ICCPR”). That article has been consistently construed by the courts of state parties to ICCPR as imposing obligation on state parties to refrain from intentional and unlawful taking of life and to take appropriate steps to safeguard the lives of individuals within its jurisdiction: see ARJ v Australia[6], GT v Australia[7], and Osman v United Kingdom[8]. In the context of non-refoulement protection, an obligation of that wide import could only be discharged by state parties to the ICCPR or the receiving state to where the claimant will be refouled or by the host state by refraining from removing a claimant to the receiving state where his right to life will be at risk of arbitrary deprivation. Likewise, the obligation could only be breached by state parties to the ICCPR or by the refouling state or Hong Kong under BOR 2; but not by acts of a non-state body in the receiving state causing severe injuries or pain and suffering for any reason or purpose. More recently, Lord Brown in the House of Lords in Bagdanivicius[9] held that in cases where the risk emanates from intentionally inflicted acts of the public authorities in the recipient state, the intentionally inflicted acts would without more constitute the proscribed treatment. But if the risk emanates from non-state bodies, any harm inflicted by the non-state agents will not constitute ill-treatment unless in addition the receiving state has failed to provide reasonable protection. In Ubamaka Edward Wilson v Secretary for Security and Director of Immigration[10], the Court of Final Appeal held that if there are substantial grounds for the Immigration Department to believe that there is a personal and substantial risk of a claimant’s right under BOR 2 being violated in the receiving state should he be refouled there, it constitutes a good ground for restraining the Immigration Department from removing him to that state. As distilled from these authorities, the test for BOR 2 Risk ground is whether there are substantial grounds for believing that there is a personal and substantial risk of a claimant’s right under BOR 2 being violated by the receiving state or by non-state actors there against which the receiving state would be unable or unwilling to provide adequate protection, if refouled. The standard of protection is not the absolute standard, but a practical standard. 22.Applying the above test to the circumstances of this case, the factual issues raised by BOR 2 Risk ground are whether there are substantial grounds for belief that there is a personal and substantial risk of the Applicant’s right under BOR 2 being violated (i) by a death sentence passed in Pakistan against him in violation of BOR 2(2) to (6); or (ii) by other intentional acts of the Pakistani authority; or (iii) by other intentional acts of non-state actors against which Pakistan will be unable or unwilling to provide him adequate protection. If no death sentence has been imposed on the Applicant or if he would not be at risk of having one being passed on him on his return to Pakistan, prima facie, BOR 2 Risk ground would not be engaged, unless his life would otherwise be at risk from acts of non-state actors and the Pakistani authority would be unable or unwilling to provide him with adequate protection. If a death sentence has been or would be imposed on the Applicant, the next issue would be whether the refoulement would expose him to the necessary and foreseeable consequences involving breaches of article 2(2) to (6) of BOR 2, for example whether the sentence of death was passed under a final judgment or whether the claimant has been deprived of his right to seek pardon. 23.Though it appears that the Board had not made any finding that a death sentence has been passed on the Applicant, it is not the Applicant’s case that such a sentence has been passed on him. In paragraph 21 of its Decision, the Board also dismissed article 2(2) to (6) as irrelevant “as they deal with capital punishment and the like, and have no relevance to this case.” That is an indication that the Board also understood that no death sentence had been passed on the Applicant. All along, the thrust of the Applicant’s case is that he is at risk of harm only from B and N who are non-state actors. But, against that, the Board found neither B nor N had any intention to harm or kill him, that adequate state protection was available and would be available to him on his return to Pakistan and there was no indication that he would not be able to access it. This case is not one in which the Applicant’s life will be at risk of arbitrary deprivation from the receiving state or from non-state actors in the receiving state and the receiving state will be unable or unwilling to provide him adequate protection. The Applicant had identified no other intentional acts of the Pakistani authority. All these three factual issues have been resolved by the Board against the Applicant. The fact that no death sentence has been passed on the Applicant is an incontrovertible fact. The other facts are solely the Board’s finding of fact which this Court may not intervene save for errors of law, procedural unfairness and irrationality in the Decision. On the evidence, it was open to the Board to make those finding of fact and this Court could detect no such vitiating elements in the Board’s finding or in the Decision. These findings were made independently of the Board’s mistake in its misunderstanding of the BOR 2 Risk ground. Despite its mistake on the law, on the basis of its finding of fact which is beyond challenge and on the basis of the law as stated by the Court of Final Appeal in Ubamaka, BOR 2 Risk ground is not engaged in this case. Thus, on the eventual analysis, the Board’s construction of BOR 2 or its misunderstanding of the law relating to BOR 2 Risk ground has no adverse impact on the Board’s decision under BOR 2 Risk ground. This case is not one in which the Applicant’s life will be at risk of arbitrary deprivation from the receiving state or from non-state actors in the receiving state against which the receiving state will be unable or unwilling to provide him with adequate protection. BOR 2 Risk ground is not engaged. Observations on the Board’s Decision under the remaining three ground 24.Despite the Board has doubts on the credibility of the Applicant’s case, it assessed his claim on the basis of the case as he asserted and some further finding of facts based on his evidence and the COI. It found, inter alia, that the Applicant had not been inflicted with any injury, let alone one which attained the minimum level of severity, that state protection would be available to him on his return to Pakistan, that there is no ground based on well-founded fear not to seek protection, that the Applicant’s dispute with B and N is a personal dispute and his feared risk is not on account of a Convention reason. Then, applying the law applicable to non-refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support his claim to protection under all three remaining applicable grounds. These are mixed finding of fact and of the law. Insofar as they are finding of the law, save for its misunderstanding of the BOR 2 Risk ground they are absolutely correct. The finding of fact was made independently of the mistake. The Board’s mistake had no impact on the its Decision and its finding of fact. The finding of fact is exclusively within the realm of the Board, which the Court on a judicial review will not interfere except when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. Other than the error relating to the test for BOR 2 Risk ground which had no impact on the Decision, the Court could detect no error of law or procedural unfairness in the Board’s Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Viewed in the round, not only that the Board’s misunderstanding of the law relating to BOR 2 Risk ground has no adverse impact on the Board’s decision under BOR 2 Risk ground, it has no impact on the Decision under all grounds. Overall scrutiny 25.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied, except for its statement of the law relating to BOR 2 Risk ground, that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof and correctly identified the issues. Other than that error, the Court could detect no error of law or procedural unfairness or irrationality in the Board’s Decision. 26.Viewed as a whole, the Board’s error is a minor technical error of construction of BOR 2 which has no adverse impact on its decision under BOR 2 Risk ground and on the Decision as a whole. Had the Board properly directed itself, it will not reach any other decision. Hence, this Court is of the view that the Applicant should not be entitled to any remedy on a judicial review. The Board’s mistake has caused her no harm or prejudice. Even if leave were granted and this part of the Decision is quashed on review, the Applicant will inevitably obtain no remedy at a rehearing of the appeal by a Board properly directed on the law. The review, if allowed to proceed, would be a complete waste of judicial time and costs. In the circumstances, it would be appropriate for this Court to withhold remedy from the Applicant on the basis that he has suffered no harm or prejudice as a result of the mistake: see for example, Cinnamond v British Airports Authority[11] and Simplex GE (Holdings) Ltd v Secretary of State for the Environment[12]. 27.For these reasons, the Applicant’s leave application is refused. Dated the 20th day of October 2026
Form CALL-1 [1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000808_2022_files/the_Board's_Decision.pdf [5] [2018] HKCA 524 at [14(1)] [6] CCPR/C/60/D/692/1966, UN Human Rights Committee (HRC), 11 August 1997 [7] CCPR/C/61/D/706/1996 (4 December 1997) http://www.refworld.org/docid/4ac9acbfd.html [8] (1998) 29 EHRR 245 [9] Regina v Secretary of State for the Home Department (Respondent) ex parte Bagdanavicius (FC) and another (Appellants), [2005] UKHL 38 at para 24, [2005] 2 AC 668; [2005] 4 All ER 263; [2005] WLR 1359 [11] [1980] WLR 582 [12] [2017] PTSR 1941 at 1060B-1060F |
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