ASHRAF ATIF v. TORTURE CLAIMS APPEAL BOARD

HCAL 427/2025

[2025] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 427 OF 2025

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Pakistan who last arrived in Hong Kong on 23 October 2022 with permission to work as a foreign domestic helper until the expiration of his employment contract on 16 May 2024 or within 14 days of its early termination, but upon the completion of his employment, he did not depart and instead overstayed, and was subsequently arrested by police. 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 2 of his former business associates over their previous business disputes.

2.  The Applicant was born and raised in Gujranwala, Pakistan. After leaving school he worked as a domestic helper in his home district, and then in September 2016 he came to Hong Kong to work as a foreign domestic helper to make his living.

3.  In 2019 he returned to his home district in Pakistan to marry his wife, and started a business with his brother selling mobile phones and accessories imported from Dubai with capital from 3 local investors in their home district, and with profits to be shared amongst them.

4.  However, they lost the business in late 2020 after their supplier in Dubai failed to deliver their ordered goods and disappeared with their money, for which 2 of the investors demanded for the return of their capital, and when the Applicant was unable to do so, the 2 investors then made threats against him and his brother, and also made complaints to the police who merely told them to settle their dispute amongst themselves.

5.  To avoid the continuing threats from the 2 investors, the Applicant departed Pakistan on 23 October 2022 for Hong Kong to work as a foreign domestic helper, but after completing his employment he was afraid to return to Pakistan and therefore overstayed in 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 9 October 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 7 November 2024 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”).

7.  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 his business investors 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 them to seriously harm or kill him other than to press him to repay their capital, that in any event it was a private monetary dispute between them 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”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 252 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 or Karachi where it would be difficult if not impossible for anyone to locate him.

8.  On 18 November 2024 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 14 January 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 January 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision 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 those business investors that caused him to overstay in Hong Kong to seek protection, 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 those investors to seriously harm or kill him other than to press him to repay their capital, and that in any event it was a private monetary dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 14 February 2025 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 or in his supporting affirmation of the same date in which he just repeated his claim as before and with a bare assertion that the Board reached the wrong decision in rejecting his claim without any proper inquiry or careful understanding of his situation but without providing any relevant or necessary details or particulars or elaboration to corroborate his assertion, nor was he able to do so or put forth any proper grounds for his intended challenge at the hearing of his application other than some copies of documents in his native language without any proper translation or prior production to either the Director or the Board for their consideration during his previous screening process. 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.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm 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, 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.  For all these reasons I am 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