MEHERBAN HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 676/2021

[2025] HKCFI 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 676 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 42-year-old national of Pakistan who entered Hong Kong illegally on 14 October 2011 and was arrested by police on 25 October 2011, for which he was subsequently convicted and sentenced to prison for 21 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over their land dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

2.  The Applicant was born and raised in Tehsil Dina, Jilla Jhelum, Pakistan. After leaving school he worked in various jobs such as carpenter, tailor and driver, got married and raised a family with a son in his home district.

3.  In 2005 his father intended to purchase a piece of land in their home village for their family home, but as a wealthy landowner Akhtar from the same village also wanted to purchase the same land, it led to heated disputes between the 2 families.

4.  One day in 2006 Akhtar’s wife was found murdered inside their home, and Akhtar somehow suspected it had something to do with his land dispute with the Applicant’s family and accused them for murdering his wife to the police who then arrested some of the Applicant’s siblings for interrogations, and in 2007 the Applicant was also arrested by the police for interrogations, and during their detention the Applicant and his brothers were tortured by the police who beat them with sticks to try to force them into a confession of the murder, and for which they were subsequently charged for the murder and were brought to trial.

5.  Eventually with the help of lawyers hired by their parents, the Applicant and his brothers were acquitted by the court, of which however Akhtar became furious and swore to take revenge for his wife by threatening to kill the Applicant.

6.  As a result the Applicant fled from his home district for Peshawar and then Karachi, but when he later heard that Akhtar had sent men to look for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so in April 2011 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 December 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 31 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 Akhtar upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Akhtar to seriously harm or kill him in particularly that the Applicant had already been acquitted by the court after a trial, that in any event it was a private dispute between him and Akhtar 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 207 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 Lahore or Faisalabad where it would be difficult if not impossible for anyone to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 March 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from Akhtar that caused him to flee from his country to come to Hong Kong to seek protection, and that even if his account of a land dispute with Akhtar were true that there was no reliable evidence that Akhtar had made any attempts to go after the Applicant for months before he departed the country that it does not accept that there would still be any adverse interest of Akhtar in the Applicant after all these years since he left the country that it did not accept that the Applicant would face any risk of harm from anyone upon his return to Pakistan, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 12 May 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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 Board rejected his claim essentially on its adverse finding on his credibility 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 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.

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 9 January 2025 filed an affirmation requesting to withdraw his application as he now wants to return to his home country but without any explanation as to what has happened to his claimed risk.

17.  For all these reasons I am 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 of his wish to withdraw his application and to return to Pakistan, 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