SHAHBAZ AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 875/2022

[2025] HKCFI 2836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 875 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 52-year-old national of Pakistan who arrived in Hong Kong on 28 October 2015 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Farooqabad, Sheikhupura, Punjab, Pakistan. After leaving school he worked as a construction worker, got married and raised a family with 3 children in his home village where he and his brothers had inherited their father’s farmland.

3.  In 2006 the Applicant discovered that his family’s farmland had been wrongfully occupied by a fellow villager Irfan Dogar (“Irfan”) who was also a local leader of the political party Pakistan Muslim League (N) (“PML(N)”), and when he tried to confront Irfan and his followers, they then threatened to kill him, and fearing for his safety the Applicant therefore fled from the scene and subsequently made a report to the local police, but was told that it was a private matter between him and Irfan but advised him not to mess with Irfan due to his political connections.

4.  Upon learning about the Applicant’s report to the police, Irfan repeated his threats to kill him, and so the Applicant fled from his home to take shelter in a relative’s place in Kott Adu, but one day in August 2007 he was attacked by some unknown men who beat him into unconsciousness, and that he was subsequently brought by some passers-by a local clinic for medical treatments.

5.  Suspecting that his assailants were sent by Irfan to kill him, the Applicant in September 2007 left the country for Dubai to work as a construction worker, but one day while he was on his way home from work, he was attacked by some strangers until intervened by some passers-by that he was brought to hospital for medical treatments.

6.  Believing that those assailants were sent by Irfan to kill him, the Applicant left Dubai to return to Pakistan to stay in a friend’s place in Khairpur, but one day in March 2009 when he was on his way home from the fruit market, he was shot at by 2 men on motorcycles, but he managed to flee from the scene unharmed and fled to Bannu in Khyber Pakhtunkhwa to stay in another friend’s place.

7.  However, one day in June 2011 while he was driving with his friend to the fruit market, a car drove by with gun shots fired at them, whereupon the Applicant’s friend returned fire with his rifle that their assailants then sped away.

8.  After another occasion in May 2015 when he was again attacked by unknown men for no apparent reason, and as he suspected that all these attacks were instigated by Irfan against him to stop him from reclaiming his family’s farmland, the Applicant felt that it would not be safe for him to remain in Pakistan, and so on 20 October 2015 he departed Pakistan for Macau, and from there he travelled to Hong Kong on 28 October 2015, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 5 February 2016 and a Notice of Further Decision dated 7 December 2016 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Irfan and his followers 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 that all those assaults made against him by unknown men were sent by Irfan other than his own suspicions and speculations or that Irfan would still have any adverse interest in him after having occupied the land all these years since 2006, that in any event it was a private land dispute between him and Irfan 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 199 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 Irfan to locate him.

11.  On 23 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 31 May 2022 before the Board during which he declined to answer questions raised of his claim in particularly as to the various issues which the Adjudicator found to require his explanations and clarifications but which he refused despite being invited and advised to do so. On 11 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

12.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence but which he failed or declined to clarify or explain at the hearing that it rejected the credibility of his claim of fear of harm from anyone known as Irfan Dogar or anyone else over any land dispute in his home village that caused him to leave his country to come to Hong Kong to seek protection, and concluded that the Applicant had failed to show or establish that he faces any real threat to his safety upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 2 September 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator failed to make sufficient inquiry before finalizing the determination;

(2)  That the Adjudicator failed to give sufficient weight to the chance and to arrange for the Applicant to obtain evidence on oral hearing to his non-refoulement claim as well as his appeal;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

14.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 in assessing his claim. 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.

15.  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.

16.  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 paragraphs 39 – 71 of its decision and in the absence of any clarifications or explanations from him as to the many issues raised of his claim at the hearing but which he declined despite being invited and advised by the Adjudicator to do so, 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.

17.  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 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.

18.  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.

19.  Moreover, the Applicant recently on 23 April 2025 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

20.  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, and in view of his latest confirmation that it is safe for him to return to his home country, 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