AAMIR MANZOOR v. TORTURE CLAIMS APPEAL BOARD

HCAL 39/2020

[2025] HKCFI 2184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 39 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 (counsel for) 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 40-year-old national of Pakistan who entered Hong Kong illegally on 25 February 2007 and was arrested by police on 10 April 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his 3 step-brothers and their maternal family members over an inheritance dispute between them, who also held grudges against the Applicant with them being local supporters of the political party Pakistan People’s Party (“PPP”) for his support of their rival Pakistan Muslim League (Q) (“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Dub, Tehsil, Mirpur, Azad, Kashmir, Pakistan. He remained unemployed after his studies in a college for 2 years in 2000. After having 3 sons with his 1^st wife and her passing, the Applicant’s father married his 2^nd wife who is the Applicant’s mother. One of the Applicant’s elder step-brothers who insulted the Applicant’s mother back in about 1998 was forced to moved out of the household by his father, whilst the other 2 brothers relocated to the UK since they were young. The Applicant’s 3 elder step-brothers and her family were all hostile to him and were unwilling to share his father’s properties with him.

3.  The 3 step-brothers staged 2 accidents against their father when they heard that he was planning to sell part of his land to build a new house for the Applicant and his mother and sisters, and their father died in the second of such accidents. After that, in 2004 and 2005 the Applicant’s step-brothers planned 3 attacks against the Applicant in attempts to get rid of him and to seize his inherited properties, but the Applicant was able to recover from his injuries sustained during those attacks.

4.  Since then, the Applicant’s step-brothers and cousins framed a murder case against the Applicant and got him arrested and beaten by the local police before being released, attacked the Applicant multiple times by hitting the Applicant’s motorcycle when he was travelling on it, throwing him over the bridge to try to drown him, breaking into his home and beating him which caused cuts and bruises all over his body and he was hospitalised for 2 days.

5.  Fearing for the Applicant’s safety, on 27 February 2007 the Applicant’s mother arranged him to depart Pakistan for China, and from there he later sneaked into Hong Kong by boat, 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 22 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 3 February 2015 and a Notice of Further Decision dated 30 November 2016 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 his step-brothers and cousins 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, that the ill-treatment inflicted upon him did not attain a minimum level of severity and that there is no indication that they were pursuing the Applicant after they have already taken over his piece of land after he has left the country, that in any event it was a private and personal dispute between the Applicant and his step-brothers and cousins only 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 242 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 Lahore or Karachi where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 15 December 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claimed fear of harm from his step-brothers and cousins that caused him to leave his country to come to Hong Kong to seek protection, that the Applicant was unable to provide any evidence to substantiate his claims that his step-brothers instigated all those incidents against his father and himself, that his credibility was further undermined by his responses at the hearing which were different from his previous account of events before the Director and by his inconsistent evidence that his claimed fear of harm was due to political grudges, and that in any event even if his claimed risk were real that it arose from some private dispute between his step-brothers and cousins only without any official involvement that state or police protection would be available to him 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 6 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non‑refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was a private dispute between him and his step-brothers and cousins only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge..

12.  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.

13.  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, 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.

14.  Furthermore, 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 part 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.

15.  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.

16.  Moreover, the Applicant recently on 26 February 2025 in writing to request to withdraw his application as his status of staying in Hong Kong has changed but without providing any further details or documentary evidence in support.

17.  In the premises, and 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 to withdraw his application, 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