ARSHAD MAHMOOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 234/2021

[2026] HKCFI 387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 234 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegally in January 2010 and was arrested by police in September 2010.  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 some local supporters of the political party Pakistan People Party (“PPP”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”) and refused to join their party.

2.  Whilst released on recognizance pending the determination of his claim, the Applicant subsequently disappeared without reporting on his recognizance until some 5 years later when he was re-arrested by police on 12 June 2020, and only then that he proceeded with his non-refoulement claim.

3.  The Applicant was born and raised in Lahore, Punjab, Pakistan. After leaving school he assisted in his father’s farming, got married and raised a family with a son in his home district, and followed his family’s tradition to support PML(N) regularly attended their local meetings and activities without holding any official post in the party.

4.  One day in August 2009, a local PPP member by the name of Riaz who was also a neighbor approached the Applicant to invite him to join his party, but when he refused, Riaz became furious and made threats against him.

5.  Several weeks later Riaz came with a group of men to the Applicant’s home to demand that he joined PPP, and when he again refused, they slapped and punched him several times, and before they left, Riaz threatened him that they would kill him if next time he still refused to join PPP.       

6.  As a result, the Applicant became fearful for his life, and so he moved with his family to his wife’s maiden home in Gujranwala, and in January 2010 the Applicant departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 31 October 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 23 November 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”).

8.  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 Riaz and his fellow PPP 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 those local PPP supporters 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 without any 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 233 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 Gujranwala where he had stayed before without incidents and where it would be difficult if not impossible for those local PPP supporters to locate him.

9.  On 30 November 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 26 January 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 4 February 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found no reliable evidence of any real intention of Riaz and his fellow PPP supporters to seriously harm or kill the Applicant or to have any political reason to specifically target him given that he was just an ordinary PML(N) supporter without any official post in the party, 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.    

11.  On 26 February 2021, 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 does not agree 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, nor was he able to do so at the hearing of 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.

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 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.                

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