HUSSAIN ABID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3496/2019

[2025] HKCFI 3421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3496 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of Pakistan who entered Hong Kong illegally on 15 October 2007 and was arrested by police on 4 August 2008. 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 certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Seem, District Mirpur, Province Azad Jammu & Kashmir, Pakistan. After leaving school he worked as a labourer, got married and raised a family with 2 children, and supported PPP by regularly attended their local activities including putting up their posters on the streets in his home village.

3.  One day in early 2007, the Applicant was confronted by 3 local PML(N) supporters who demanded him to stop supporting PPP, and when he refused, they then made threats against him before they left.

4.  Several weeks later one day while on his way home from the market, the Applicant ran into the same 3 PML(N) supporters who then attacked him and struck him in the head with wooden sticks that the Applicant later had to seek medical treatments in a local clinic.

5.  A few days after the incident the Applicant received a call from one of the 3 assailants who threatened that next time they would kill him if he still continued to support PPP. As a result the Applicant became fearful for his life, and so on 6 October 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 19 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 those local PML(N) 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 them to seriously harm or kill him other than to just harass and intimidate him or of any political reason for them to specifically target him or to have any adverse interest in him given that he was just an ordinary PPP supporter without holding 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 196 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 where it would be difficult if not impossible for anyone to locate him.

8.  On 2 February 2015 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 13 November 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any PML(N) supporters that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of those PML(N) supporters to seriously harm or kill him or of any political reason to specifically target him for harm or to have any adverse interest in him given that he was just an ordinary PPP supporters without holding 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 that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile the Director on 6 April 2017 in writing invited the Applicant to submit additional facts that he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and upon receiving from him similar information of continuing threats from those local PML(N) supporters, the Director by a Notice of Further Decision dated 20 April 2017 also rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of being arbitrarily deprived his life in violation of BOR 2 ground upon his return to Pakistan.

11.  The Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board did not hold any further oral hearing and dealt with the appeal in the absence of the Applicant and on papers, and upon finding that his claim even on the factual basis of his own case did not fulfill the requirements under BOR 2 risk on his return to Pakistan that the Board by a Decision[2] dated 8 November 2019 rejected the Applicant’s appeal and his claim under BOR 2 risk, and that it also confirmed the Director’s Further Decision.

12.  On 25 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1) That it was procedural impropriety in the Board’s failure to conduct an oral hearing for his BOR 2 appeal/petition;

(2) That it was procedural impropriety in the Board’s failure to consider the COI in finding that it would be safe for him to return to his home country;

(3) That there was error/misdirection in law in the Board’s failure to consider the BOR 2 provision properly.

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, while it was entirely within the discretion of the Board to decide whether it would be appropriate to hold another oral hearing for the Applicant’s appeal when it did already hold one for his earlier appeal under the other applicable grounds during which he was able to make full representation for his claim and that he never sought any legal challenge of this earlier decision of the Board, and as correctly pointed out by the Board in its second decision that on the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground in its limited scope. 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 of this second decision of the Board, or for that matter its first decision either.

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 on all the applicable grounds

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.

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