IQBAL UMAR alias IQBAL UMER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2627/2024

[2026] HKCFI 4461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2627 OF 2024

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 33-year-old national of Pakistan who arrived in Hong Kong on 18 November 2023 as a visitor with permission to remain as such up to 26 November 2023 when he did not depart and instead overstayed, and on 6 December 2023 he surrendered to the Immigration Department and 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 Shia villagers over their religious dispute with the Sunni villagers including himself. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Village Pandori, Dina Tehsil, District Jhelum, Punjab, Pakistan. After leaving school he worked as an imam of the Jamia Sheikh-ul-Islam Mosque in neighboring Village Boharian Danial where he preached the Koran to small children and led their prayers.

3.  In 2019 he was transferred to the Muhammadia Mosque in Village Pohtta some half an hour bus ride from his home village to carry on the same work as an imam as before.

4.  Nothing eventful happened throughout his years as imam of the mosque which was being shared between Sunni and Shia Muslims for their respective uses until one day in 2022 when a large group of Shia Muslims came to the mosque to demand the Applicant and his fellow Sunni Muslims to leave which then led to a mass brawl that some of the Sunnis were beaten and injured but the Applicant managed to escape without harm.

5.  However, after being involved in another violent confrontation between the Sunni and Shia Muslims amongst the villagers over the use of the mosque in early 2023 when the Applicant suffered injuries to his head and right knee, and when subsequently the local police failed to mitigate the conflict, the Applicant became concerned for his own safety and moved to Banhoma, Azad Kashmir, and on 17 November 2023 he departed Pakistan for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 12 August 2024 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 all the relevant circumstances of the Applicant’s claim and found no real and foreseeable risk of him being harmed or killed by those local Shia Muslims upon his return to Pakistan 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 to specifically target him for harm due to their dispute over the use of the mosque in his home village, 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 252 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 anyone to locate him.

8.  On 20 August 2024 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 15 October 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 November 2024 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 of being involved in 2 incidents in which he and his fellow Sunni Muslims were attacked by some local Shia Muslims due to their dispute over the use of the village mosque but found no reliable evidence of any real intention of any of them to seriously harm or kill him or to specifically target him for harm, and that in any event in the absence of 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 27 December 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 his supporting affirmation of the same date in which he just repeated his claim as before 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 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 parts 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.

13.  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.

14.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Pakistan as soon as possible.

15.  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 issue 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