KHAN MUHAMMAD IMRAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1353/2019

[2025] HKCFI 3781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1353 OF 2019

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 years old national of Pakistan who entered Hong Kong illegally on 24 April 2009 and was arrested by police on the same day. 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 his girlfriend’s family who objected their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thatta Kamonka, Nankana Sahib, Punjab, Pakistan. The Applicant had 2 grandfathers, namely Waryam and Ghafoor who both inherited the Applicant’s great grandfather’s farmland in equal portions. Waryam then gave his portion of the farmland to his 3 sons and one of them was the Applicant’s father. On the other side of the family, Ghafoor’s family heavily indulged in criminal activities. In 1995 or 1996, Ghafoor framed the Applicant’s father with a false case who was then arrested by the local police and was tortured.

3.  Since 2001, the Applicant witnessed from afar that the Ghafoor family threatened the Applicant’s father with people armed with firearms and to make him suffer again by falsely reporting him to the police if he did not give up his lands, which led to the Applicant’s father being afraid and sending the Applicant to live with his siblings in Jaranwala City away from home. In 2006, members of the Ghafoor family illegally took over and grew corps on a part of the Applicant’s father’s land.

4.  In 2006, one of the grandsons of Ghafoor, Irshad, was arrested for kidnapping and murder. Irshad suspected that the Applicant had tipped off the police and wanted to take revenge but when he visited the Applicant’s home to look for him, he had already relocated to Jaranwala City.

5.  After discussing with his father and with his arrangement of an agent, the Applicant departed Pakistan on 16 April 2009 for Guangzhou, China, and after staying there for a week he sneaked into Hong Kong via Shenzhen by boat. Upon his arrest by the police, he raised a torture claim but was later withdrawn, and subsequently he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 18 May 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 found no substantial ground for believing that he would be in danger of being harmed or killed by from the Ghafoor family and/or Irshad upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that in fact the Applicant was not the legal owner of his father’s land, that his evidence was merely assertive in nature and did not substantiate his claims, that he was never harmed by anyone from the Ghafoor family, that in any event it was a private land dispute between them 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 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 part 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 28 May 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 12 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found discrepancies, inconsistencies and contradictions in the Applicant’s evidence that it did not consider him to be a credible witness and doubted the credibility of his claim of fear of harm from the Ghafoor family and/or Irshad that caused him to leave his home country for Hong Kong, and concluded that the Applicant had failed to establish his case that he will face any harm of any nature from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 20 May 2019 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 Board’s decision 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.

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 paragraphs of 57 - 75 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 correctly 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.  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