SHAKIL AKRAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 553/2024

[2025] HKCFI 5027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 553 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Pakistan who entered Hong Kong illegally on 1 August 2023 and was arrested by police on 3 August 2023. 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 members of the political party Pakistan Muslim League (N) (“PML(N)”) over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kalri, Kashmir, Pakistan. After leaving school he worked as a construction worker, got married and raised a family with 3 children in his home district.

3.  Upon the passing of his father in 2011, and as he subsequently applied to have his father’s land in his home district to be transferred to him as the sole beneficiary of his father’s estate, he discovered that the land had earlier been transferred by the local minister Tariq to another person, and when the Applicant confronted Tariq about the transfer, he was told by Tariq to go away, whereupon the Applicant lodged a complaint to the police.

4.  Shortly thereafter Tariq sent some people of PML(N) with whom he had connections to threaten the Applicant, which deteriorated into a fight between them and the Applicant and his brother, whereupon Tariq field false charges against the Applicant.    

5.  As the threats from Tariq had persisted, the Applicant felt it was not safe to remain in Pakistan, and so in June 2023 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 18 September 2023 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 28 November 2023, 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”).

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 Tariq and his followers 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 Tariq to seriously harm or kill him other than to deter him from pursuing his claim against him, that in any event it was a private land dispute between him and Tariq 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 242 million people spread across a vast territory of more than 770,000 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 Rawalpindi where it would be difficult if not impossible for anyone to locate him.

8.  On 8 December 2023, 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 February 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 March 2024, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  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 local minister by the name of Tariq 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 the said Tariq to seriously harm or kill him other than to deter him from pursuing with his claim against him, and that in any event it was a private land dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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.  On 3 April 2024, 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 in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting 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.

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 essentially on its adverse finding on his credibility 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 both the Director and the Board in their respective 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.

14.  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.  Moreover, the Applicant recently on 3 September 2025 filed an affirmation requesting to withdraw his application as his problem has been resolved that it is now safe for him to return to his home country.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave 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