AMIR KHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 254/2021

[2026] HKCFI 1189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 254 OF 2021

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Pakistan who had previously arrived in Hong Kong in 2002 as a visitor but subsequently overstayed and was arrested for using an identity card relating to another person and was convicted and sentenced to prison for 8 months before being repatriated to Pakistan in 2003 that he again sneaked back into Hong Kong some 4 years later on 24 October 2007 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) in revenge for what his father was said to have done to them, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sirka, Tensil, District Attock, Punjab, Pakistan. After leaving school and liked his father and uncle he worked as a farmer in his home village to make his living.

3.  In 2006, his father and his uncle participated in some protest organized by rival political party Pakistan Muslim League (N) (“PML(N)”) against PML(Q) in Attock City which deteriorated into violence and led to the death of several PML(Q) supporters, and for which their people blamed the Applicant’s father and uncle and swore to take revenge against them, and as a result the Applicant’s uncle was subsequently arrested by police while his father had disappeared and was believed to have left the country.

4.  When the local PML(Q) supporters were unable to locate his father, they then turned their hostility against the Applicant by coming to his home on several occasions to attack him with wooden sticks that he suffered cuts and bruises all over his body.

5.  As a result, the Applicant became fearful for his life and fled to Islamabad, and on 26 September 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 11 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 16 November 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 those local PML(Q) supporters upon his return to as low due to the low intensity and frequency of past ill-treatment from, that there is no evidence of any real intention of them to seriously harm or kill him now that on his own admission that his father had in 2011 returned to Pakistan and was subsequently said to have been poisoned and killed by those PML(Q) that if true there is no more reason for the PML(Q) people to take any revenge against the Applicant, nor is it accepted that there would still be any adverse interest in him after all these years since he left the country in 2007, that in any event in the absence of 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 205 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 Lahore where it would be difficult if not impossible for anyone to locate him.

8.  On 28 November 2018, 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 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from those local PML(Q) supporters in revenge for his father’s action but found no reliable evidence of any real intention of them to seriously harm or kill him given that his father had since returned to Pakistan that there was no longer any reason for them to seek revenge against the Applicant, nor is it accepted there would still be any adverse interest in him after all these years since he left the country in 2007, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan to negate whatever risk that may still be there from those PML(Q) people that it is not accepted that the Applicant would face any real risk of being harmed by anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 1 March 2021, 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 repeated his claim as before 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.

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 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.

13.  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 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.                

14.  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.

15.  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