KHATOON JANNAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 719/2023

[2026] HKCFI 2805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 719 of 2023

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:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 15 May 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 5 May 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing her application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Pakistani national, aged 32.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in detail in the Board’s Decision.  These details will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims she will be harmed or killed by her husband and his extended family; and by her own family for having dishonoured her family by leaving her husband.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

3.  The Applicant’s claim as advanced in her non-refoulement claim form (“NCF”) is as follows.  She was married in 2016.  She came to Hong Kong on 22 October 2017 on the strength of a dependent visa to join her husband.  Her husband is a Pakistani national and a Hong Kong permanent resident.  His family is wealthy and well connected with political parties and government officials in Pakistan.  He and his family treated her like a maid, beat her and threatened her.  On one occasion in 2019, she was hospitalized as a result of the beating.  After her discharge from the hospital, she did not return to her husband’s home.  They were since separated.  She testified in the prosecution of her husband for domestic violence.  She had no contact with him or his family since 2019.  In 2021, the Applicant developed a relationship with a Pakistani of a different ethnic group (her “boyfriend”).  Such relationship is not acceptable in Pakistan.  As her husband no longer sponsored her dependent visa, the Applicant became an overstayer in Hong Kong since 10 February 2022. On 26 April 2022, she raised a claim for non-refoulement protection. 

4.  On 8 June 2022, the Applicant was told by her mother that her father will harm her if she returned to Pakistan.  The Applicant does not know if her husband knows of her relationship with her boyfriend.  She fears that her husband’s relatives in Pakistan and in Hong Kong will harm her if they find out her relationship with her boyfriend.

The finding of the Board

5.  The Applicant testified before the Board.  She claimed two sources of fear in Pakistan, one from her own family and one from her husband’s extended family.  When asked why she would not be able to live safely with her boyfriend in Pakistan, she said because her husband did not treat her well, and because her family knows that she has left her husband and is living with her boyfriend.  She said her family do not approve of her relationship with her boyfriend.  Her boyfriend had once sent a photograph of the two of them together to her family, but her family told him that they did not recognise their relationship and would kill the Applicant if she returned to Pakistan.  She said she had never been directly threatened by her mother or anyone else in her family, as the only contact she had with them since her separation from her husband was through her boyfriend.  That evidence directly contradicted her evidence in the NCF that her mother called her on 8 June 2022 and directly threatened her.  The Board considered the inconsistency undermined the credibility of all of the Applicant’s claims.  As for her boyfriend’s evidence about the threat, the Board considered it a piece of hearsay evidence from someone who has a non-refoulement claim of his own and thus has an interest in the success of the Applicant’s application.  And as that evidence differed from her evidence in the NCF, the Board was not satisfied that the threat had actually been made. 

6.  When asked why she would not be able to live safely with her boyfriend in Karachi, the Applicant replied ‘Pakistan is Pakistan’.  She said she could not return to Pakistan, because her husband did not treat her well, and her family will kill her for the family’s honour.  When asked how would her family know if she returned to Pakistan, she said her husband has a large family in Pakistan and she cannot return there as she would not feel safe.   The Board considered her evidence about the risk of harm from her husband’s family very vague and general and consisted entirely of mere assertions that his family was extensive, powerful and well-connected.  But she had made no claim that any threat had ever been made against her by them and she had no contact with her husband and her family since 2019.  The Board accepted that the Applicant’s husband’s behaviour towards her may give rise to a subjective fear of harm on her part, but was not satisfied that there was any objective basis for her fear of harm from her husband’s family should she return to Pakistan. 

7.  The Board studied extensively the country of origin information (“COI”) about Pakistan.  It accepted that divorced women or women separated from their husbands and without the support of their family or a male relative were vulnerable and may face serious problems in Pakistan.  But other than claiming fear of harm from her and her husband’s families, the Applicant advanced no other basis of fear.  She only repeatedly asserted that she would not return to Pakistan because ‘Pakistan is Pakistan’ and presumably is unsafe for women. 

8.  The Board found the Applicant’s risk localised to the area in which her family lives in Punjab and there is no basis for her to claim that her family would locate her anywhere in Pakistan.  Given that if the Applicant were to return to Pakistan she would most likely do so in the company of her boyfriend, the Board found on the basis of the COI, that it would be reasonable for her to relocate to one of the major cities such as Karachi.  Hence, the Board was not satisfied that the Applicant had established there are substantial grounds which support the conclusion that she will face a real risk of any of the proscribed harm whether from her family or the family of her husband, if she returned to Pakistan.  Applying the law applicable to non-refoulement protection under the USM, it found the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal.

The legal principles applicable to judicial review

9.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a non‑refoulement claim are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

10.  In her supporting affirmation, the Applicant submitted that she is a woman from the rural area and is illiterate.  She emphasized that she could not return to Pakistan because her life would be in danger.  At the hearing, after the legal principles applicable to judicial review had been explained to her, she repeated the same.  She said she could not remember if there was any procedural unfairness in the processing of her claim because it was a long time ago.  In effect, she is challenging the Board’s finding of fact that she had failed to establish there are substantial grounds to support her claim that she will face a real risk of ill-treatment from her or her husband’s family, if she returned to Pakistan.  That is impermissible, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court shall re-visit these issues in its overall scrutiny of the Board’s Decision.

Overall scrutiny

11.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It researched extensively into authoritative and credible COI, in particular about gender based violence and discrimination against women.  It acknowledged that divorced women or women separated from their husbands and without the support of their family or a male relative were vulnerable and may face serious problems in Pakistan.  However, the Applicant offered no evidence that she would be personally at risk of any harm other than those from her and her husband’s family. 

12.  It analyzed the evidence carefully and tested it against common sense, inherent probability and the COI.  It made some necessary further finding of facts, including that the injuries suffered by the Applicant at the hands of her husband did not attain the minimum level of severity, that the injuries she would likely suffer would not arise on account of one or more of the reasons enumerated in the 1951 Convention relating to the status of refugees and the 1967 Protocol, that the Applicant would not be in danger of being subjected to torture on the basis of the general security situation in Pakistan and that state protection and internal relocation are available.  For completeness, the Board found the risk, if any, are localised and could be avoided by internal relocation.  Then, applying the law applicable to non-refoulement protection under the USM to the above finding of facts, the Board found the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the　Applicant failed to discharge her burden of proving her fears and risks.  The proposed judicial review has no realistic prospect of success. 

Conclusion

13.  For the above reasons, the Applicant’s leave application is refused.

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