ABBAS QASIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1161/2020

[2025] HKCFI 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1161 OF 2020

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 37-year-old national of Pakistan who entered Hong Kong illegally on 27 January 2016 and surrendered to the Immigration Department on the same day 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 certain local Sunni Muslims in their disputes with the local Shia Muslims. 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 Mangowal, Gujrat, Pakistan. After leaving school he ran a shop to make his living, got married and raised a family with a daughter in his home village.

3.  In 2011 he had had a quarrel which deteriorated into a fight with some Sunni Muslims from neighbouring village who came to his home village to spread propaganda against Shia Muslims, and thereafter those Sunni Muslims then made some false charges against him to the police.

4.  Although no charges were brought against him, the Applicant organized a rally of Shia Muslims from his home village against those Sunni Muslims who then fired gun shots at them causing numerous injuries and deaths that the leader of the Sunni Muslims was subsequently arrested by the police, and when those Sunni Muslims vowed to take revenge, the Applicant fled to Dinga City in Punjab to take shelter in a friend’s place before moving on to Lahore, and on 21 January 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 August 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”).

6.  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 Sunni Muslims 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 or to target him for harm, 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 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 Karachi where it would be difficult if not impossible for those local Sunni Muslims to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 31 March 2020 before the Board without any explanation or response to the Board’s subsequent enquiries for his non-attendance, nor did he request any further oral hearing for his appeal, and of which the Board proceeded to deal with in his absence and on the evidence and information contained in the hearing bundle before the Board. On 8 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no evidence of the Applicant being specifically targeted by those local Sunni Muslims or of any real intention of them to seriously harm or kill him other than his own speculations, 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 that it is not accepted that he would face any real risk of any sort as claimed that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 11 June 2020 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 in his supporting affirmation of the same date in which he just stated that he does not agree with the decision and that he did not get a fair judgment from the Board but without providing any details or particulars or elaboration as to how it was so. 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.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision on the basis of all the information and materials contained in the hearing bundle before the board after the Applicant failed to attend the scheduled oral hearing of his appeal without any explanation. As such, 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.

12.  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.

13.  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.

14.  Moreover, the Applicant recently on 22 November 2024 filed an affirmation requesting to withdraw his application as he wants to return to his home country as soon as possible but without providing any details or particulars as to what has happened to his claimed risk.

15.  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 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