ALI RAMZAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 603/2025

[2025] HKCFI 2242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 603 OF 2025

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 4 August 2024 and surrendered to the Immigration Department on 9 August 2024 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 his cousin and his cousin’s family and relatives for causing injury to his cousin’s sister in an accident. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Misri Banda, Nowshera, Khyber Pakhtunkhwa, Pakistan. After leaving school he worked as a bricklayer and cattle farmer to make his living, got married and raised a family with 6 children in his home village.

3.  One day in 2021 while attending the wedding of his cousin Mansoor in his home village, the Applicant accidentally caused an accident that injured Mansoor’s sister Ruby who was then rushed to the local hospital for an operation, and although she was subsequently discharged after a week with full recovery, she was told by her doctors that she would not be able to bear children in future as a result of her injury, and for which her family including Mansoor, her husband Malik, and Malik’s brother Zoor all blamed the Applicant and threatened to kill him in revenge.

4.  One day in 2022 while on his way home from work, the Applicant was confronted by Mansoor and Malik who attacked him by punching and kicking him violently that he suffered cuts and bruises all over his body until intervened by some villagers, whereupon the Applicant was taken to hospital for medical treatments.

5.  After the assault the Applicant became fearful for his life and fled to Jhang to take shelter in a friend’s place before moving on to his aunt’s place in Nowshera.

6.  However, when he later heard that Mansoor and Malik were looking for him everywhere, and on his wife’s advice the Applicant decided to leave the country to save his life, and so he travelled to Lahore, and in July 2024 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 18 November 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 December 2024 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”).

8.  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 Mansoor and his family 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 them to seriously harm or kill him other than angry words and empty threats, that in any event it was a private and personal dispute between them 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 252 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 or Faisalabad where it would be difficult if not impossible for anyone to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 February 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 March 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Mansoor and family that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events were true that there was no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private and personal 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 that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 10 March 2025 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 Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(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 failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(8)  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.

12.  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, or how did the Adjudicator fail to give him sufficient time or opportunity to provide evidence for his claim when he never made such request to the Board during his appeal, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private and personal dispute within his family only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant who also failed to attend the hearing of his application without any explanation, I do not find any of his listed grounds reasonably arguable for his intended challenge.

13.  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.

14.  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.

15.  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.

16.  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