YASEEN WAQAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 399/2021

[2025] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 399 OF 2021

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 entered Hong Kong illegally on 25 May 2016 and surrendered to the Immigration Department on 29 July 2016 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager and his family due to their personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mirpur, Pakistan. While in college he was a popular player in the college’s cricket team, but one of his fellow players by the name of Faisal was jealous of him and was often provocative and aggressive towards the Applicant which created tensions between the 2 of them.

3.  One day in July 2010 during a practice match Faisal got into some argument with the Applicant, and together with his brothers they beat the Applicant on the field with cricket bats that the Applicant suffered serious injuries and was subsequently taken to hospital for medical treatments.

4.  Upon his discharge from hospital the Applicant was accompanied by his father to make a complaint to the local police who however refused to take any action against Faisal as his father was a fellow senior police officer who instead threatened the Applicant’s father to drop the complaint or else there would be serious consequences.

5.  Thereafter due to persistent harassments and intimidations from Faisal that the Applicant in early 2014 dropped out of college and went to Rawalpindi to work as a taxi driver until the end of the year when he returned to his home district.

6.  However, the threats and harassments from Faisal and his family continues, and on his father’s advice the Applicant on 2 December 2014 again departed Pakistan for Dubai until August 2015 when he returned to Pakistan.

7.  Shortly after his return to his home village the Applicant heard that the police were looking for him over a murder case that occurred recently in the village, and suspecting that it was Faisal or his family who had made false charges against him to the police, the Applicant felt it was no longer safe to remain in the country, and so on 21 April 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 28 February 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be at risk of being harmed or killed by Faisal and his family 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 of any adverse interest of the police in him given the fact that he was able to apply for his passport and then left the country without any problem, that in any event it was a private and personal dispute between him and the Faisal family 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 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 areas of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for Faisal or his family to locate him.

10.  On 13 March 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 26 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and the credibility of his claim of fear of harm from Faisal and his family that caused him to leave his country to come to Hong Kong to seek protection, and that it was unable to find the centerpiece of his claim to stand and concluded that he had failed to establish any risk of being subjected to any harm or ill-treatment upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 22 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he repeated his claim as before and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator exercised his case management power wrongfully;

(2)  That the Board failed to carry out sufficient research and inquiry into the COI condition which had the material consequences of a failure to overall general relevance or focus on the circumstances or the attributes and beliefs of a person fitting the profile of the Applicant that led to an unfair decision in dismissing the Applicant’s case on all applicable grounds;

(3)  That the Board failed to consider or put sufficient weight on highly relevant information as found in the limited COI research cited in the decision and instead relied on irrelevant COI that led to the dismissal of the Applicant’s case which was unreasonable;

(4)  That the Board had listed relevant COI which supported the Applicant’s case 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 Applicant was not provided any legal assistance or representation despite the fact that he does not speak English that he was unreasonably deprived of his right to make full and proper representation of his claim to the Board.

13.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any 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, and that the fact is that he was already legally represented by a lawyer from DLS during the first-tier screening process of his claim before the Director, and that the Court of Appeal has already held that high standards of fairness do not necessarily prescribe that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176. 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.

14.  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.

15.  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 26 – 29 of 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.

16.  Furthermore, the fact is that it has also been 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.

17.  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.

18.  The Applicant recently on 9 September 2024 filed an affirmation requesting to withdraw his application as he already got independent visa (sic) in Hong Kong but without any further details or documentary evidence in support of his bare assertion.

19.  In the premises, 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, I refuse to grant leave and accordingly dismiss his leave application.

20.  The Court having recently been informed by the Immigration Department that the Applicant has been removed from Hong Kong accordingly direct that a copy of this decision and the sealed order be sent to the Director with a request that he uses his best endeavor to forward them to the Applicant in Pakistan.

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