KHAN SALMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 191/2023

[2026] HKCFI 3803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 191 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Pakistan who entered Hong Kong illegally on 1 December 2020 and was arrested by police on 21 December 2020. 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 his paternal uncle and sons over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Formooli, Tehsil Hazro, District Attock, Punjab, Pakistan. After leaving school he worked as a farmer on the farmland which he inherited from his father, and which he heard when he was just a child that it originally belonged to his paternal uncle who subsequently sold it to his father for urgent needs of money, but which his uncle had since regretted, and after the passing of the Applicant’s father that he had been demanding for the return of the land to him but refused by the Applicant, which then led to serious conflicts between the 2 families over the years.

3.  One day in 2016 while the Applicant was working on the farmland, his uncle and sons approached and again demanded for the return of the land to him, and when the Applicant refused, his uncle and sons proceeded to attack him by punching and kicking him until they were restrained by other villagers.

4.  After several more vicious attacks by his uncle and sons, the Applicant became fearful for his safety and in 2018 fled to Islamabad, but later when he heard that some unknown men were looking for him in Islamabad, the Applicant suspected that they were sent by his uncle to kill him, and so to save his own life the Applicant in March 2019 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 August 2021 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 11 October 2021 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and sons 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 his uncle to seriously harm or kill him other than to press him to give up his land to him, that in any event it was a private land dispute between him and his uncle only without 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 233 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Rawalpindi or Faisalabad where it would be difficult if not impossible for his uncle and sons to locate him.

7.  On 22 October 2021 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 25 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 January 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle and sons over some land dispute that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 3 weeks later and only after his arrest by the police, that even if his account of events prior to his departure from Pakistan were true that there was no reliable evidence of any real intention of his uncle and sons to seriously harm or kill him other than to press him to give up his land to them, and that in any event it was a private land dispute between them only and within their family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan to negate any such risk from his uncle and sons that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 10 February 2023 the Applicant filed his 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 just stated that he does not agree with the decision with just bare assertions that the Adjudicator did not listen to him or pay any attention to his claim but without providing any relevant or necessary details or particulars or elaboration as to how it was so. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of the Board’s decision.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim 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.

12.  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.                

13.  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.

14.  It is also of note that the Applicant has recently on 22 May 2026 filed an affirmation requesting to withdraw his application as he now wants to return to Pakistan but without any explanation as to what might have happened to his claimed risk in his home country.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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