SHAHZAD FURRUKH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2048/2020

[2025] HKCFI 3684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2048 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 / 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 36-year-old national of Pakistan who entered Hong Kong illegally on 1 April 2015 and surrendered to the Immigration Department on 16 April 2015 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 certain local Sunni Muslims due to their dispute over his conversion into a Shia Muslim. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Udarwal, Chakwal, Punjab, Pakistan. After leaving school he worked as a fire rescuer in his home district.

3.  During his work he became a good friend to his Shia colleagues, and gradually under their influence that the Applicant in July 2014 converted his religion to become a Shia Muslim, but when his family came to know about his conversion, they became very upset with him, and one of his cousins informed the Sunni organization Ahle Sunnat Wal Jammat (“ASWJ”) in his home district of his conversion that their local leader came to demand the Applicant to re-convert into a Sunni Muslim, and when the Applicant refused, the ASWJ people then made threats against him.

4.  Shortly thereafter one day in November 2014 while riding his bike on his way home, the Applicant heard several gun shots from behind, and although he was not hurt and could not see who fired the shots, he suspected that they were from those ASWJ Sunni Muslims people trying to frighten him.

5.  Several weeks later one day in December 2014 the Applicant was ambushed by a group of ASWJ Sunni Muslims who attacked him with batons and other weapon that he suffered cuts and bruises all over his body, and before they left those ASWJ people warned him that next time they would kill him if he still failed to heed their demand to re-convert back into a Sunni Muslim.

6.  After the attack the Applicant became fearful for his life and fled to Lahore to hide in his aunt’s place, but one day in January 2015 when he was riding his bike to work, a car tried to hit him from behind, but he was able to avoid the car and fled from the scene unharmed.

7.  The Applicant suspected that the ASWJ Sunni Muslims had been able to locate him in Lahore and tried to kill him that he felt it was no longer safe to remain in Pakistan, and so on 2 March 2015 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 31 October 2018 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 10 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”).

9.  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 ASWJ Sunni Muslims 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 those local Sunni Muslims to seriously harm or kill him, 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 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

10.  On 18 December 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 17 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local Sunni Muslims of ASWJ that caused him to leave his country to come to Hong Kong to seek protection, and that he was totally vague about the practice as a Shia Muslim or its religion that it rejected his claim of having converted his religion from a Sunni Muslim into a Shia Muslim or that he had ever been threatened by any Sunni Muslims or the ASWJ people that it concluded that he will not face any such risk upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 12 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 in which he just repeated in details his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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.

13.  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.

14.  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 paragraphs 22 – 53 of 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.

15.  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.

16.  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.

17.  Moreover, the Applicant recently on 14 May 2025 in writing requested to withdraw his application as his issues in his home country have now been resolved that he wants to return to Pakistan.

18.  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 of no more issues 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