TABRARAS KHAN alias TABARAS KHAN RAZA KHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 615/2021

[2025] HKCFI 5665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 615 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 39-year-old national of Pakistan who entered Hong Kong illegally on 5 March 2020 and was arrested by police on 6 March 2020.  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 his uncle over some land dispute between his uncle and his father in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Haroon, Tehsil Hazro, District Attock, Pakistan.  After leaving school he worked as a farmer, got married and raised a family with 3 children in his home district.

3.  His father and his paternal uncle had inherited his grandfather’s estate of some farmland in his home village, but of which his father felt that he had been cheated by his uncle in the distribution of the land, and one day in January 2020 while he was working as a waiter in Attock, the Applicant was told by his mother on the telephone that his father and the Applicant’s elder brother had been shot and killed by his uncle and sons during a quarrel between them over their land dispute, and that he was warned by his mother not to return to his home village for fear of being killed by his uncle as well, and so the Applicant became fearful for his life, and on 2 March 2020 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 27 April 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 1 June 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”).

5.  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 his uncle and sons upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of his uncle to harm or kill him over his uncle’s land dispute with his father, that in any event it was a private dispute between his uncle and his father 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 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 his uncle to locate him.

6.  On 9 June 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 27 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 23 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision[1] the Board accepted the Applicant’s claim of land dispute between his father and his uncle but found no reliable evidence that his father had indeed been killed by his uncle or of any intention of his uncle to harm or kill him other than hearsays and his own speculations, and that in any event it was a private land dispute between his father and his uncle 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 his uncle that his claim for non-refoulement protection failed on all applicable grounds.    

8.  On 3 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 did he request any oral hearing for 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.

9.  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.

10.  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 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.

11.  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.

12.  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