MUHAMMAD KHALID v. TORTURE CLAIMS APPEAL BOARD

HCAL 1872/2020

[2025] HKCFI 5872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1872 OF 2020

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 52-year-old national of Pakistan who entered Hong Kong illegally on 18 September 2006 and was arrested by police more than 7 months later on 2 May 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his neighbors over personal disputes between their 2 families. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Dhilu Sharki, Jalal Pur Jattan, District Gujarat, Punjab, Pakistan. After leaving school he worked as a construction worker, and moved to reside with his sister Sughra and her family in the same home district.

3.  In about 2000, Sughra started to have disputes with her neighbor Parveen initially over various issues between their children which led to open hostilities between the 2 families.

4.  In 2004, their disputes escalated after Parveen’s husband was attacked and injured by the Applicant and his friends with wooden sticks which led to the arrest of the Applicant by the police and his subsequent conviction for the assault, and for which he was sent to prison for 12 months.

5.  Upon his release from prison and his return to his sister’s home, the Applicant later heard that Parveen and her husband had hired some local gangsters to take revenge against him, and so he fled from his sister’s home to hide in a friend’s place in Kala Chak, and on 6 September 2006 he 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 Supplementary Claim Form (“SCF”) on 5 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 18 July 2014, the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Parveen and her family and/or their hired gangsters 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 Parveen or her family to seriously harm or kill him other than angry words and empty threats, that in any event it was a private personal dispute between him and Parveen’s family 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 196 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 Lahore where it would be difficult if not impossible for Parveen or her family or their hired gangsters to locate him.

8.  On 30 July 2014, 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 21 November 2014 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 March 2015, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found no reliable evidence of any real intention of his neighbors Parveen or her family to seriously harm or kill the Applicant over what were essentially private and personal disputes 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile, the Director on 25 November 2016 on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and after receiving and considering a letter from the Applicant in which he just repeated his claim as before, the Director by a Notice of Further Decision dated 19 October 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

11.  On 31 October 2017, the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 18 June 2020 before the Board which found that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground, and proceeded to also reject his BOR 2 Claim by a Decision[2] dated 10 September 2020 upon finding that whatever risk that may arise from his BOR 2 Claim would be similarly negated by both state protection and internal relocation available to the Applicant upon his return to Pakistan as found in its earlier and unchallenged decision under the other applicable grounds.

12.  On 18 September 2020, the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board as regard his BOR 2 Claim, and in his supporting affirmation of the same date he made various complaints against both the decisions of the Board as well as of the Director’s decision but which has been superseded by his subsequent appeal to the Board and hence not susceptible to his present application, while his complaints of the Board’s decision can be summarized as essentially that the Board determined his BOR 2 Claim unfairly and unlawfully without enabling him to understand what his BOR 2 right was all about, or to provide assistance for him to understand the decision and the reasons for rejecting his claim but none of which are in my view reasonably arguable 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 shown or identified by the Applicant for his intended challenge, and that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground due to its limited scope, as so correctly found by the Board.

13.  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.

14.  In the Applicant’s case, the Board rejected his BOR 2 Claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him again in his oral evidence and his answers to questions raised of his claim in a further oral hearing, 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 either in his Form or at the hearing of his application, I do not find any reasonably arguable basis to challenge the findings of the Board.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their earlier decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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 on all applicable grounds.

17.  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