KAZMI SAQIB ABBAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 453/2022

[2026] HKCFI 3114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 453 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Pakistan who entered Hong Kong illegally on 7 August 2013 and was arrested by police on the same day.  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 the family of the victim of some violent incident who blamed him for the incident. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Shia Muslim in Mohallah Meher Kot, District Ponch, Tehsil Hajaira, Azad Kashmir, Pakistan. After leaving school he worked as a salesman in some fruit store in his home district to make his living.

3.  One day in May 2013 while he together with other Shia Muslims were attending some religious ceremony in a neighboring village, the Applicant noticed a small group of young men acting particularly rowdy, and fearing that they might cause trouble to the crowd that he reported them to the police to keep an eye on the group.

4.  However, the rowdy group became angry with the Applicant and started to attack him and his friends which led to a big chaotic fight amongst the crowd, during which some gun shots were fired resulting in many casualties and with one man killed, but the Applicant managed to escape from the scene with just minor injuries.

5.  Shortly thereafter the Applicant was told by his friends that some of the villagers as well as the victim’s family blamed him for causing the incident, and advised him to leave the country to save his life, and so the Applicant fled from his home village to Kotli City to take shelter in a relative’s place, and on 3 August 2013 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 4 October 2018 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 19 November 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”).

7.  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 there will be any real risk of him being harmed or killed by any Shia villagers or the victim’s family or the police upon his return to Pakistan in the absence of any reliable evidence of such risk or threats from any of them other than just hearsays and the Applicant’s own speculations, that in any event in the absence of any adverse interests of the police in him or of any official involvement in any threats from any Shia villagers or the victim’s family 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 Lahore or Karachi where it would be difficult if not impossible for anyone to locate him.

8.  On 26 November 2018, 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 June 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 2022, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found no evidence that the Applicant had been directly involved in or associated with the victim’s death to cause the victim’s family or any of the Shia villagers to target him for revenge other than unsubstantiated hearsays or his own groundless speculations, and that in any event in the absence of any evidence of any adverse interest from the police in him or any official involvement in such threats 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 10 June 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 in his supporting affirmation of the same date in which he just asserted that the Board had made many errors in its decision but without identifying any of them, nor did he subsequently attend the scheduled hearing of his application without any explanation. 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.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  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.

15.  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