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HCAL 523/2022
[2026] HKCFI 2675
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 523 OF 2022
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BETWEEN
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Minhas Rabia |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review be refused.
Observations for the Applicant:
1. The Applicant is a 40-year-old national of Pakistan who last arrived in Hong Kong on 20 August 2015 as a visitor with permission to remain as such up to 15 July 2017 as extended when she did not depart and instead overstayed, and on 18 July 2017 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Pakistan she would be harmed or killed by her former husband and/or his family. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Chakwal, Punjab, Pakistan. After leaving school she married her husband who has right of abode in Hong Kong where he worked as a truck driver, and accordingly in June 2003 she followed her husband to move to Hong Kong under a dependent visa where they lived with his parents and raised a family with 2 children born respectively in 2004 and 2005 in Hong Kong.
3. However the Applicant soon found her husband violent and abusive towards her, while his parents were also always on his side against her, but she had to put up with it as she was in an unfamiliar place and with no friends or family of her own in Hong Kong.
4. In May 2009 her husband and his parents brought the Applicant and the children back to Pakistan pretending to be for holidays but instead they stayed in his parents’ ancestral home where he took away their travel documents, and continued to behave violent and abusive towards the Applicant, but after several months her husband returned to Hong Kong by himself, leaving the Applicant and the children in Pakistan, whereupon the Applicant brought the children to stay with her parents in Chakwal City.
5. In July 2013 her husband returned to Pakistan to take the Applicant and the children back to his parents’ home, but not only did he remain abusive towards the Applicant, he was even more violent whenever he lost his temper and beat her at will, and one day in October 2013 after beating her violently, he then drove her and the children out of his parents’ home and back to her parents’ place, and in August 2014 he applied and obtained a divorce to dissolve their marriage.
6. Fearing that she would continue to be under the threats of her former husband, the Applicant decided to leave Pakistan for Hong Kong where her children are permanent residents, which she did on 19 August 2015 when she brought the children back to Hong Kong, but after her own application for permanent residency was refused and after 16 July 2017 when she subsequently overstayed in Hong Kong, she then raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 31 May 2018 and attended screening interview before the Immigration Department with legal representation.
7. By a Notice of Decision dated 20 July 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 her 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 her former husband and family upon her 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 her former husband or family to seriously harm or kill him or to have any further adverse interest in her since their divorce in 2014, that in any event it was a private and personal dispute between her and her husband 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 her home district in large cities such as Lahore or Faisalabad where it would be difficult if not impossible for anyone to locate her.
9. On 1 August 2018 the Applicant by her lawyer lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 30 March 2021 before the Board with her lawyer during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 31 May 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision[1] the Board accepted the Applicant’s claim of being abused and mistreated by her former husband and his family during their marriage but found no reliable evidence of any further adverse interest of either of them in the Applicant since their divorce in 2014 when even on her own admission of having no further contact with any of them that it is not accepted that she will face any risk of being harmed or ill-treated by her former husband or his family upon her return to Pakistan, while relevant COI show that state protection as well as support and assistance from various government departments and NGOs for her as a divorced or single woman or victim of domestic violence if so needed, while the fact that she had been granted custody of her children who are permanent resident in Hong Kong will not assist her case or form any basis for non-refoulement protection as held by the Court of Final Appeal in Comilang v The Director of Immigration [2019] HKCFA 10, and that in any event her children are now both adults having since reached their age of majority that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.
11. On 23 June 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her 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 her intended challenge of the Board’s decision.
12. 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.
13. In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as with submission made by her lawyer on her behalf, 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.
14. Furthermore, the fact is that it has also been correctly established by the Director in his decision 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 her to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford her 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. 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 her application.
Dated the 12th day of May 2026
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12 May 2026
Minhas Rabia
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 May 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 12738/18/8/8/P2479
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2603/18 (formerly: RBCZ/11790/17)(T8S21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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