AHMED MUHAMMAD IRFAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 159/2021

[2025] HKCFI 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 159 OF 2021

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 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 his paternal uncle over disputes with the Applicant’s father within their family. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bagh Jumeri Tehsil, Kallar Saydan, District Rawalpindi, Punjab, Pakistan. After leaving school he worked as a farmer on his father’s farmland in his home district which his father inherited from his grandfather but which was coveted by his paternal uncle and had led to constant conflicts between his father and his uncle.

3.  In 1993 his elder brother was murdered and subsequently his uncle was arrested by police for being involved and was detained for interrogation for 4 years until eventually released on bail, and was acquitted by the court after a trial, and for which his uncle blamed the Applicant’s father and swore to take revenge by killing the Applicant, and so his father arranged for the Applicant to leave the country to work in Dubai from 2007 to 2010, during which the Applicant was told by his mother that his uncle caused an explosion in his home that killed his father and sister.

4.  Upon returning to Pakistan in 2013 the Applicant was afraid to return to his home district, and instead stayed in various towns, but when he later heard that his uncle had sent men looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so on 5 February 2016 he departed the country 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 18 April 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 11 May 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”).

6.  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 paternal uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his uncle to seriously harm or kill him given that his uncle’s animosity was mainly against the Applicant’s father and not the Applicant, that in any event it was a private dispute within the family between his uncle and his father 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 261 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 Lahore where it would be difficult if not impossible for his uncle to locate him.

7.  On 23 May 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 5 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 February 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from this paternal uncle but found the risk arose from some private dispute between his uncle and his father within the family 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 his uncle that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 16 February 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 asserted that he is not satisfied with the decision which is unfair but without providing any details ro particulars as to how it was so, nor did he put forth any proper ground for his intended challenge. 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.

10.  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.

11.  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 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.

12.  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.

13.  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.

14.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong, I therefore direct that a request be made to the Director to make his endeavour to forward a copy of this decision together with the sealed order to the Applicant in Pakistan.

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