HUSSAIN HAMEED v. TORTURE CLAIMS APPEAL BOARD

HCAL 2042/2020

[2025] HKCFI 4846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2042 OF 2020

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 49-year-old national of Pakistan who had previously in 2007 entered Hong Kong illegally and raised a torture claim to the Immigration Department on the basis of his fear of being harmed or killed by certain Shia Muslims in his home district due to their religious dispute which he subsequently withdrew without decision and was repatriated to Pakistan in 2013, but some 7 years later on 5 April 2020 he sneaked back into Hong Kong and raised a non-refoulement claim for protection on the basis that he still faces the risk of being harmed or killed by those Shia Muslims from his previous claim if refouled to Pakistan. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Jhelum, Pakistan. After leaving school he worked as a welder to make his living in his home district.

3.  One day in August 2007 while quelling up at a bus stop to go to work, he had an argument with some Shia Muslims over some religious issues which led to a fight when he was punched and kicked by those men until intervened by some passers-by that the Applicant managed to flee from the scene.

4.  A week later one day when he was on his way to work, the Applicant was again attacked by the same people who earlier assaulted him at the bus stop until intervened by some passers-by that he managed to make his escape without serious injuries.

5.  Thereafter when he reported the assault to the police, the Applicant leant that one of his assailants was a local gangster with powerful influences, and was advised by the police to just make his apology to them to avoid further trouble.

6.  After another attack by the same men on another occasion, the Applicant became fearful for his safety and departed Pakistan on 4 September 2007 for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim to the Immigration Department but which he subsequently withdrew after receiving news that his mother was seriously ill in Pakistan, whereupon he was repatriated to his home country on 14 June 2013.

7.  Upon returning to his home district, the Applicant married his wife and raised a family with 3 children in Mirpur, but somehow for the next several years he was attacked by unknown men on 3 occasions for no apparent reasons that he suffered cuts and bruises all over his body which required medical treatments in the local hospital, and while he could not recognize any of those assailants, he suspected that they were sent by that local gangster in Jhelum with whom he had had an argument at the bus stop back in 2007 which later triggered off all the attacks that followed, and so in 2016 the Applicant moved from Mirpur with his family to Chakwal.

8.  However, one day in May 2018 while he was on a motorcycle with his wife travelling along a road, 2 motorcyclists drove by and fired gun shots at him which missed him but instead hit and killed his wife, of which the Applicant again suspected that the assailants were sent by those Shia Muslims from his home district to kill him, which led him to believe that it was no longer safe for him to remain in Pakistan, and so on 24 October 2019 he departed for China, and from there he again sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 14 July 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”).

10.  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 local Shia Muslims 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 over such a minor incident back in 2007 that it is not accepted that they would still have any adverse interest in him after all these years since he left the country, that there is no evidence that those Shia Muslims were involved in any of those subsequent incidents after his return to Pakistan in 2013, that in any event it was a private religious 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 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 Lahore or Faisalabad where it would be difficult if not impossible for anyone to locate him.

11.  On 29 July 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 14 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from any Shia Muslims in his home district that caused him to leave his country twice to come to Hong Kong to seek protection, and that it did not consider the Applicant to be a credible or reliable witness that his account of events occurred to him prior to his departure of Pakistan was all his invention and fabrication that it is not accepted that he had ever been threatened or assaulted by any Shia Muslims or anyone or that his wife had been killed as alleged due to any reasons that it is not satisfied that the Applicant will face any risk of being harmed or killed by anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 9 October 2020 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 in which he just repeated his claim as before 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.

14.  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.

15.  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 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.

16.  Furthermore, the fact is that it has also been 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 him to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  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