UDIN SALAH alias SALAH-UD-DIN alias SALAHUDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2037/2020

[2025] HKCFI 4960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2037 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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Pakistan who had previously illegally entered Hong Kong in September 2013 but was subsequently in February 2016 voluntarily repatriated to Pakistan again on 3 December 2017 sneaked back into Hong Kong, and on 4 December 2017 surrendered to the Immigration Department when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by the terrorist group the Taliban. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Deolai, Swat, Pakistan. After leaving school he ran some motor vehicle business in his home village which was then under the control of the terrorist group Tehrik-i-Taliban (“Taliban”), during which the Applicant had witnessed their atrocities against the local villagers, including demanding money from the Applicant’s grandfather and making threats against his family that the Applicant and his family subsequently fled to Peshawar.

3.  In 2009 the Pakistan military drove the Taliban away and regained control of the village that the Applicant and his family were able to return to his home village, and to remain vigilant against the return of the Taliban, the Pakistani Army set up a voluntary village defense committee (“VDC”) for the village headed by the Applicant’s grandfather to keep watch against the Taliban and to regularly report to the Army, and in which the Applicant subsequently also joined.

4.  Soon some of the families of the VDC members including the Applicant and his family started to receive threats from the Taliban, and after witnessing on television the bombings and killings committed by the Taliban in various places in Pakistan, the Applicant was advised by his grandfather to leave the country to save his life, and so in September 2013 he departed Pakistan for China, and from there he later sneaked into Hong Kong, but subsequently in February 2016 he voluntarily returned to Pakistan.

5.  However, after returning to his home village, the Applicant was still apprehensive about threats from the Taliban, and so in December 2017 he again departed for China, and from there he again sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 November 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 20 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”).

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 the Taliban upon his return to Pakistan as low due to the absence of any past ill-treatment from them other than just witnessing their acts on television, that there is no evidence of any intention of the Taliban to specifically target him for harm, that in any event the Taliban have been banned by the Pakistani government as terrorists 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 204 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him.

8.  On 2 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 9 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.

9.  In its decision[1], the Board accepted the Applicant’s claim that his grandfather was a leader of the VDC in his home village but found no evidence of any harm being inflicted by the Taliban against the Applicant or any member of his family as confirmed by him during the hearing, nor is it accepted that the Taliban would still have any adverse interest in him or his family after all these years since he left the country and that no harm has ever happened to his family, and that in any event relevant COI show that the Taliban no longer have any presence in Pakistan after their return to Afghanistan, and that any few attacks carried out by them in Pakistan since had been primarily targeted at the Pakistani police or military that it is not accepted that the Applicant will face any real risk of any proscribed harm from the Taliban upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 9 October 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he attend the scheduled hearing of his application without any explanation. 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 as well as relevant COI as regard the absence of Taliban activities in Pakistan since their return to Afghanistan, 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 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.

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