MAQSOOD KHAYAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 496/2022

[2026] HKCFI 3116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 496 OF 2022

  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 34-year-old national of Pakistan who entered Hong Kong illegally on 28 February 2020 and was arrested by police on 3 June 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 certain local supporters of the political party Pakistan Tehreek-e-Insaf (“PTI”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bhimber AJK, Pakistan where he worked as a welder in his home district to make his living, and supported PML(N) regularly attended their local meetings and activities without holding any official post in the party.

3.  During the 2018 general election the Applicant and his fellow PML(N) supporters were involved in several fights with some of the local PTI supporters that he suffered some superficial injuries, and on one occasion in November 2018 when he and a fellow PML(N) supporter were having a drink by the roadside, they were confronted by a group of PTI supporters who proceeded to attack them with wooden sticks, and when they were fleeing from the scene, one of the PTI supporters pulled out a pistol and shot at them that one of the bullets struck and hit his friend, but the Applicant managed to make his escape for home unharmed.    

4.  When the Applicant later heard that his friend had subsequent died from the gun shot, he became fearful for his own life and therefore fled to Lahore to take shelter in a friend’s place, and on 13 June 2019 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 14 December 2020 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 23 February 2021 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”).

6.  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 PTI supporters 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 or any political reason for them to specifically target him given that he was just an ordinary PML(N) 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 233 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 his home district in large cities such as Rawalpindi or Faisalabad where it would be difficult if not impossible for anyone to locate him.

7.  On 3 March 2021 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 26 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any local PTI supporters that caused him to leave his country to come to Hong Kong to seek protection that it rejected his claim of having ever been interested in politics or involved in the support of any political party or that as a result he had ever been threatened or attacked by anyone for any political reason prior to his departure of Pakistan, and that in any event relevant COI show that PML(N) has since won the general election and become the ruling party of Pakistan that state or police protection would be available to the Applicant upon his return to Pakistan if so needed from any risk that may arise from the PTI supporters that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 17 June 2022 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 in his supporting affirmation of the same date in which he just asserted that there are “a lot of error” in the decision but failed to identify any of them, nor was he able to do so at the hearing of 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.

10.  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.

11.  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.

12.  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 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.                

13.  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.

14.  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 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