MEHMOOD SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 917/2023

[2025] HKCFI 4963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 917 OF 2023

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 37-year-old national of Pakistan who entered Hong Kong illegally on 17 July 2020 and was arrested by police more than 3 months later on 29 October 2020.  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 certain local supporters of the political party Pakistan Tehreek-e-Insaf (“PTI”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Kila Sobha Singh, Narowal, Punjab, Pakistan and raised in Sialkot City.  After leaving school he worked in a gloves factory and supported PML(N) regularly attended their local meetings and activities in his home district.

3.  In 2010 he went to work in Malaysia and Saudi Arabia until 2018 when he returned to his home district in Pakistan and resumed his support for PML(N), and during the 2018 general election that he and his fellow supporters were involved in violent conflicts with the PTI supporters.

4.  After PTI won the election and became the ruling party, some of their local supporters became aggressive and vindictive against the PML(N) supporters, and on one occasion in August 2018 while on his way home from the town market, the Applicant was attacked by a group of PTI supporters that he suffered cuts and bruises all over his body and was subsequently taken to a hospital in Sialkot City for medical treatments.

5.  After another attack by those PTI supporters some 2 months later, the Applicant fled to Lahore to take shelter in a friend’s place, but several months later on one occasion when he was shot at by some unknown men from a car, and although he was not hurt, the Applicant became fearful for his life and fled to Karachi, and on 30 January 2020 he departed Pakistan 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 6 July 2021 and attended screening interview before the Immigration Department with legal representation. 

6.  By a Notice of Decision dated 29 September 2021 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 those local PTI supporters 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 them to seriously harm or kill him or any political reason for them to specifically target him given that he was just an ordinary PML(N) supporter with no official post in the party, 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 226 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 Faisalabad or Rawalpindi where it would be difficult if not impossible for anyone to locate him.

8.  On 15 October 2021 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 6 October 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 12 May 2023 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 PTI supporters that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 3 months later and only after he was arrested by the police that it is not accepted that he had any active involvement in politics upon his return from Saudi Arabia as claimed or that he had come into any conflict with the PTI people over any political dispute or that he had ever been threatened or attacked, and that the Board concluded that it is not satisfied that he will face any appreciable risk of serious harm from anyone upon his return to Pakistan given the fact that the PML(N) leader is now the country’s Prime Minister while the Member of the National Assembly in his home district Sialkot City is also a PML(N) member that state protection would be available to him as well as reasonable internal relocation that his claim for non‑refoulement protection failed on all applicable grounds.  

10.  On 12 June 2023 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 stated that he is not satisfied with the decision as his life is still in danger in his home country 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 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