HAMEED YASIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 762/2021

[2026] HKCFI 1190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 762 OF 2021

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 41-year-old national of Pakistan who entered Hong Kong illegally on 1 January 2016 and surrendered to the Immigration Department on 5 January 2016 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 some of his customers in his home district over their monetary disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohala Iqbal Colony, Jala Pur Jattan, Gujrat, Pakistan. After leaving school he worked as a general labourer and salesman to make his living, got married and raised a family with 3 children in his home district.

3.  In 2014, he started working as a commission agent for some vegetable wholesalers in his home district earning commissions for arranging for fruits and vegetables to be delivered to various retailers in the local market.

4.  However, in 2015 after having placed orders for some of those vegetable retailers from the wholesalers but for which those retailers failed to pay and disappeared with the supplied goods, and when the Applicant was unable to meet their demands to settle the outstanding bills, those wholesalers started to make threats against the Applicant, and after being beaten badly by them on one occasion that he suffered serious injuries which required medical treatments in a local clinic, the Applicant became fearful for his safety and fled from his home district to Lahore to hide in his uncle’s place.    

5.  As he was still fearful of being located by those wholesalers, the Applicant on 27 December 2015 departed Pakistan for China, 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 15 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 29 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 assessed the level of risk of harm from those vegetable wholesalers 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 any of them to seriously harm or kill him other than to press him to settle the outstanding payments, that in any event it was a private monetary dispute between him and those wholesalers 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 204 million people spread across a vast territory of more than 770,000 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 or Lahore where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.  On 12 December 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attended the scheduled oral hearing on 4 December 2020 before the Board or to subsequently provide any explanation for his non-attendance or request for another hearing, and that the Board proceeded to deal with his appeal on paper based on all the materials and information provided earlier by the Applicant to the Director and available in the hearing bundle before the Board. On 27 April 2021 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 which he failed to attend the scheduled hearing to clarify or explain to the Board that it doubted the credibility of his claim of fear of harm from any vegetable wholesalers over any monetary dispute 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 wholesalers to seriously harm or kill him other than to press him for money, and that in any event it was a private monetary dispute between them only without 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 25 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 other than some bare assertions that the decision was unreasonable as his claim was not carefully considered but without any relevant or necessary details or particulars or elaboration as to how it was so, 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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision and in the absence of any oral evidence clarification or explanation of the many material inconsistencies and discrepancies raised of his claim due to his failure to attend the scheduled hearing without explanation, 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 correctly established by both the Director and the Board in their respective decisions 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, 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.  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