NAEEM EHSAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1608/2020

[2025] HKCFI 3925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1608 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Pakistan who entered Hong Kong illegally on 22 December 2019 and was arrested by police on 23 December 2019. 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 neighbor over their land dispute in his home village.

2.  The Applicant was born and raised in Village Channi, Thothal, Tehsil & District Bhimher, Azad Kashmir, Pakistan. After leaving school he worked as a construction worker and also farmed on the farmland which he inherited from his father in his home village.

3.  In 2020 his neighbor one Dr Taufiq who was a wealthy landowner with political connections started to use a path across the Applicant’s farmland to access his other properties which had led to the Applicant’s resentment and many quarrels between the 2 of them but of which the local police refused to intervene as they regarded as a private land dispute between them.

4.  One day in June 2018 when the Applicant again tried to stopped his neighbor from using the path across his farmland, he was attacked by his neighbor and his followers with wooden sticks that he suffered cuts and bruises all over his body, but the Applicant eventually managed to flee form the scene and made a report to the police who however still refused to act.

5.  As a result the Applicant became fearful for his safety and fled to Sarai Alamgir to take shelter in a friend’s place before moving on to Gujrat to stay in his uncle’s place, and on 9 July 2019 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 9 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 16 April 2020 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 neighbor and followers 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 his neighbor to seriously harm or kill him other than to deter him from interfering with his actions, that in any event it was a private land dispute between him and his neighbor 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 200 million people spread across a vast territory of more than 800,000 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 his neighbor to locate him.

8.  On 24 April 2020 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 24 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 July 2020 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 neighbor over any land dispute that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of his neighbor to seriously harm or kill him, and that in any event it was a private land dispute between him and his neighbor only without any official involvement that state or police protection would be available to the Applicant upon his return to if resorted to 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 4 August 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 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.

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 even 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.

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.  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