IFTIKHAR AHMED alias AHMED IFTIKHAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1242/2022

[2025] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1242 OF 2022

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 47-year-old national of Pakistan who entered Hong Kong illegally on 15 November 2020 and was arrested by police on 13 December 2020. 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 2 cousins over their religious dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Shia Muslim in Village Khunda, District Attock, Tehsil Jhand, Punjab, Pakistan. After leaving school he worked as a farmer, got married and raised a family with 5 children in his home village.

3.  In about 2010 the Applicant converted his religion belief from Shia Islam to Sunni Islam much to the anger and objection of his 2 cousins who were also Shia Muslims living in the same village, and when Applicant refused their demand to re-convert his religion back to Shia Islam, his dispute with his cousins deteriorated into a fist fight on one occasion in 2013 until they were restrained by other villagers.

4.  Several weeks later one evening his cousins came to the Applicant’s home with some unknown men carrying pistols and fired shots at his house, but the Applicant managed to escape unharmed from the back of his house to flee to Karachi to take shelter in a friend’s place before moving on to Lahore.

5.  However, in October 2014 the Applicant was located by his cousins in Lahore whereupon they again attacked him with wooden sticks that he suffered cuts and bruises all over his body until they were restrained by some passersby.

6.  After that attack the Applicant felt it was no longer safe to remain in Pakistan, and so in early January 2015 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police on 11 January 2015 he then raised his non-refoulement claim for protection, but which he subsequently withdrew before its determination in December 2017 when he was informed by his wife in Pakistan that his religious dispute with his cousins had been resolved within the family, whereupon the Applicant was repatriated to Pakistan on 4 January 2018.

7.  Upon returning to Pakistan, the Applicant was still afraid to return to his home village, and so he stayed in Rawalpindi where he rented a place and ran a toy shop to make his living.

8.  However, one day in November 2018 his cousins came to his shop to attack him with wooden sticks until they were restrained by the Applicant’s neighbors. After the attack the Applicant realized that he must leave the country again to save his life, and so on 6 March 2020 he again departed Pakistan for China, and from there he later on 15 November 2020 sneaked into Hong Kong, and upon his arrest by the police he again raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 August 2021 and attended screening interview before the Immigration Department with legal representation.

9.  By a Notice of Decision dated 29 September 2021 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”).

10.  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 cousins 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 them to seriously harm or kill him over what was essentially some religious dispute between them 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 238 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 his cousins to locate him.

11.  On 7 October 2021 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 9 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 October 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board accepted the Applicant’s claim of religious dispute with his cousins but found no reliable evidence of any real intention of his cousins to seriously harm or kill him over their religious dispute between them only within their family without 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 his cousins that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 11 November 2022 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.

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 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.

16.  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.

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, I therefore refuse to grant leave and accordingly dismiss his application.

18.  As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order 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