ASHRAF SHABIR v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Pakistan who entered Hong Kong illegally on 27 December 2007 and was arrested by police on 21 January 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan People’s Party (“PPP”) and refused to join PML(Q). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Udhowal Kalan, Gujrat, Punjab, Pakistan. After leaving school he worked in a factory in his home district, got married and raised a family with his children, and supported PPP regularly attended their local meetings and activities without holding any official post in the party.

3.  During the 2006 Union Council election, the Applicant was invited by 3 brothers from the same village who were all PML(Q) supporters to join their party, and although the Applicant always declined their invitation, those 3 brothers persisted in making the invitation whenever they ran into the Applicant in the village.

4.  One evening in late 2007 the Applicant was again approached by those 3 PML(Q) supporters to join their party, but when he refused on this occasion, they lost their temper and started attacking him with wooden sticks that the Applicant suffered cuts and bruises all over his body and collapsed onto the ground.    

5.  One month after the incident the Applicant was again approached by those 3 brothers who demanded him to re-consider their invitation, and before they left they warned him that next time if he still refused them, they would kill him.

6.  As a result the Applicant became fearful for his life and stopped any involvement with PPP, and on 15 December 2007 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 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 3 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those 3 PML(Q) supporters from his home village 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 those 3 PML(Q) supporters to seriously harm or kill him other than just empty threats and harassments common between rival supporters or any political reason for them to specifically target the Applicant given that he was just an ordinary PPP supporter without holding any official post in the party, that in any event in the absence of 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 196 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 Karachi where it would be difficult if not impossible for anyone to locate him.

9.  On 13 March 2015 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 6 July 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 7 April 2017, his 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 threats and harassments from those 3 brothers/PML(Q) supporters in his home village but found no reliable evidence of any real intention of any of them to seriously harm or kill him other than to press and harass him to join their party, nor is it accepted that there would still be any adverse interest of any PML(Q) people in the Applicant after all those years since he left the country, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan to negate any risk arising from any PML(Q) supporters that his claim for non-refoulement protection failed on all applicable grounds. 

11.  Meanwhile on 9 May 2017, the Director on his own initiative invited the Applicant to submit additional facts which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and after receiving and considering the additional facts submitted by the Applicant in which he just repeated his claim as before, the Director by a Notice of Further Decision dated 24 May 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights including right to life under BOR 2 being violated upon his return to Pakistan.

12.  The Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not hold any further oral hearing and proceeded to deal with the appeal on papers based on the additional materials and information submitted by the Applicant for his BOR 2 Claim, and by a Decision[2] dated 29 September 2020 the Board also dismissed his appeal upon finding that the Applicant had failed to show any substantial risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.         

13.  On 9 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board as regard his BOR 2 Claim, and in his supporting affirmation of the same date he put forward various complaints for his intended challenge which can be summarized as follows:

(1) That he was not provided with legal representation for his BOR 2 Claim either before the Director or the Board;

(2) That he was not provided with language assistance for his BOR 2 Claim as he does not read or write English;

(3) That he was never given proper opportunity to argue for his BOR 2 Claim before the Board as no oral hearing was provided for his appeal.         

14.  For his complaint under (1) of not being provided with legal representation for his BOR 2 Claim before the Director or the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment in FB v Director of Immigration, HCAL 51/2007 prescribed that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings, and that the Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and made representations in his previous appeal hearing before the Board, and given that the factual basis of even his own case did not engage the BOR 2 ground due to its limited scope, I do not find this complaint of the Applicant reasonably arguable for his intended challenge of the second decision of the Board.   

15.  As for his Ground (2) in which he complains of not being given any language assistance for his BOR 2 Claim, it is clear from both the decisions of the Director and the Board that the Applicant was able to submit additional facts and materials for his BOR 2 Claim without any problem, and for the same reasons stated above I do not find any merits in this complaint of the Applicant either.

16.  Similarly given the fact that he did earlier already attend an oral hearing for his first appeal before the Board during which he was able to make full and proper representation for his claim, and as correctly found by the Board that the factual basis of even his own case simply did not engage the BOR 2 ground, and that it is well within the discretion of the Board not to hold another oral hearing for the appeal under this ground, I do not find this complaint of the Applicant under Ground (3) reasonably arguable for his intended challenge either.     

17.  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.

18.  In the Applicant’s case, the Board rejected his claim under all the applicable grounds for the thorough and detailed analysis and reasoning set out in its 2 decisions with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in his earlier appeal, and in the absence of any error of law or procedural unfairness in his processes before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19.  Furthermore, the fact is that it has also been established by the Director in his first 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.                

20.  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.

21.  Moreover, the Applicant recently on 15 September 2025 filed an affirmation requesting to withdraw his application as all his problems “are now finished” that he wants to return to his home country as soon as possible.

22.  In the premises, 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, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave 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