MAHMOOD SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 1936/2020

[2025] HKCFI 5294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1936 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 49-year-old national of Pakistan who entered Hong Kong illegally on 1 August 2018 and was arrested by police on the same day. 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 some local politician due to some voting dispute between them. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Arafat Colony, Gujranwala, Pakistan. After leaving school he worked in embroidery at home before running his own garment shop in the town bazaar to make his living, got married and raised a family with 4 children in his home district.

3.  During the 2013 general election, one of his friends in the bazaar was running as an independent candidate for the position of a member of the Provincial Assembly in the Gujranwala constituency, and for whom the Applicant assisted in the campaign by persuading the local residents to vote for his friend instead of the opposing candidate Imran from the political party Pakistan Muslim League (N) (“PML(N)”), and for which Imran was displeased, and upon winning the election, Imran swore to take revenge against the Applicant.

4.  In 2014 the Applicant had a dispute with some landowner over the purchase of a land in his home district which he then sought help from the relevant department in Gujranwala headed by Imran who instead directed his men to beat up the Applicant violently that he suffered cuts and bruises all over his body.

5.  After the incident the Applicant sent one of his relatives to meet with Imran to try to resolve the matter but which led to a quarrel between them during which Imran shot and killed the Applicant’s relative with his gun, and thereafter Imran sent his men to the Applicant’s home to look for him, but the Applicant managed to flee with his family to Faisalabad, and in January 2015 he departed Pakistan for Saudi Arabia where he worked as a driver until early 2018 when he returned to Pakistan.

6.  However, as he still feared of being harmed or killed by Imran, the Applicant on 12 July 2018 again 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 12 November 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 21 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 found no substantial grounds for believing that his perceived fear of harm from Imran is real and foreseeable upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from Imran, that there is no evidence of any real intention of Imran to seriously harm or kill him or to still have any adverse interest in him after all these years since he first left the country for Saudi Arabia in 2015, that in any event it was a private personal dispute between just the 2 of 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 207 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 Islamabad where it would be difficult if not impossible for Imran to locate him.

9.  On 4 January 2019 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 23 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] 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 any politician by the name of Imran over any voting dispute that caused him to leave his country to come to Hong Kong to seek protection, that it did not consider the Applicant a credible witness and rejected his claims of having been involved in any election campaign against any politician by the name of Imran or that he had been in any land dispute that led him to meet Imran or that he had been threatened or assaulted by Imran or his men as all incredible and fabrications that it concluded that the Applicant would not face any real risk of proscribed harm from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 28 September 2020 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 his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as his life is not safe in his home country that he cannot go back but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 37 of 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.

14.  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.

15.  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.

16.  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