ABID v. TORTURE CLAIMS APPEAL BOARD

HCAL 718/2021

[2026] HKCFI 1601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 718 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 15 January 2020 and surrendered to the Immigration Department on 13 March 2020 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 the family of his former girlfriend who objected to their relationship and blamed him for her subsequent suicide. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Rawalpindi, Punjab, Pakistan and raised in Village Agzar, Tehsil Hazro, District Attock. After leaving school he worked as a tailor and later ran his own tailor shop in his home district.

3.  In 2018, he met and dated his girlfriend but soon they met strong opposition from her family due to their different caste, and so in the summer of 2018 they eloped to Karachi where they planned to get married, but shortly thereafter they were confronted by a group of men sent by his girlfriend’s family when they snatched her away and beat the Applicant violently that he fainted and collapsed on the ground, and was subsequently taken by some passers-by to a hospital where he stayed for 2 days for medical treatments.

4.  After the attack the Applicant stopped seeing his girlfriend, but later in July 2019 when he heard that she had committed suicide after being forced by her family to marry another man, and for which her family blamed him and threatened to kill him in revenge, and after one incident in September 2019 when some men fired gunshots at him in the street, and although he was not hit, the Applicant became fearful for his life and departed Pakistan for China in January 2020, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 November 2020 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 17 December 2020 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 found no substantial grounds for believing that will be any real chance of him facing any genuine and personal risk of harm from the family of his former girlfriend upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his former girlfriend’s family to seriously harm or kill him, that in any event it was a private personal dispute between him and his former girlfriend’s family 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 233 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

7.  On 24 December 2020, 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 24 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 May 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from the family of his former girlfriend which disapproved of their relationship and blamed him for her subsequent suicide but found in the absence of any official involvement in what was essentially a private dispute between him and his former girlfriend’s family 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. 

9.  On 18 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, nor was he able to do so at the hearing of his application. 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 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.                

12.  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.

13.  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 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