HASHMI MUHAMMAD JAVED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1604/2020

[2025] HKCFI 4517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1604 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 50-year-old national of Pakistan who entered Hong Kong illegally on 20 May 2009 and was arrested by police on the same day. 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 some fellow villager and his gangs over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Abbas Nagar, Shahadra, Lahore, Punjab, Pakistan where his father owned a property where the back housed the family and the front was used by his father as a grocery store.

3.  After leaving school the Applicant continued to reside with his parents in the family house, got married and raised a family with 3 children, and assisted his father in running the grocery store in his home village.

4.  However, a fellow villager Shahid who was said to be part of a local gang coveted his father’s property and often demanded that the property be sold at some cheap price to him, but when his demands were rejected by the Applicant’s father, Shahid would become furious and made threats against the Applicant’s father.

5.  One evening in October 2017, Shahid together with some of his gang came to the grocery store with property transfer papers and demanded the Applicant’s father to sign the papers to transfer the property to him, and when the Applicant’s father refused, Shahid and his men beat him and the Applicant who tried to intervene, and before they left Shahid and his men also vandalized the store, and that the Applicant’s father was subsequently taken to the hospital for medical treatments of his head injuries, while the Applicant was also treated for his leg injury.

6.  Unfortunately, the Applicant’s father passed away in the hospital in December 2017 from his injuries, and of which the Applicant made a report to the police, but no action was taken against Shahid due to what the police claimed to be lack of witnesses, but of which the Applicant suspected that they had been bribed by Shahid.

7.  After the attack and to avoid further threats from Shahid, the Applicant and his family moved to Lahore, but when he later heard that Shahid had sent his gang to look for him everywhere, the Applicant felt that it was no longer safe to remain in Pakistan, and so on 7 May 2009 he departed 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 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 5 February 2015 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”).

9.  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 there is reasonable likelihood that his perceived harm or being killed by Shahid and his gangs upon his return to Pakistan is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Shahid to seriously harm or kill him other than to press for the sale of the land to him, that in any event it was a private land dispute between him and Shahid 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 Karachi or Islamabad where it would be difficult if not impossible for anyone to locate him.

10.  On 12 February 2015, 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 15 December 2015 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 June 2017, his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  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 Shahid and his gangs that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of them to seriously harm or kill him other than to press him to sell his land, and that in any event it was a private land dispute between him and Shahid 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 Shahid that his claim for non-refoulement protection failed on all the applicable grounds.

12.  Meanwhile on 31 March 2017, the Director on his own initiative invited the Applicant to submit any additional facts which eh 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 further materials from him via his lawyer from DLS, the Director by a Notice of Further Decision dated 13 October 2017 also rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

13.  On 23 October 2017, the Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board did not find necessary to hold another oral hearing, and proceeded to deal with his appeal on papers based on the further materials submitted by the Applicant for his BOR 2 Claim, and by a Decision[2] dated 5 June 2020 the Board again dismissed his appeal upon finding that his claim on the factual basis of even his own case that it did not engage the BOR 2 ground given its limited scope, and re-confirmed its earlier findings that the Applicant’s alleged risk which arose from some private land dispute with a fellow villager without any official involvement will be negated by both state protection and internal relocation being available to the Applicant upon his return to Pakistan.            

14.  On 4 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, 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 does not agree with the decision 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 in his Form or at the hearing of his application, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board, or for that matter its earlier decision on his non-refoulement claim under the other applicable grounds.

15.  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.

16.  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.                

17.  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 the applicable grounds

18.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decision of the Board, 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