PARVAID SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3498/2019

[2025] HKCFI 2329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3498 OF 2019

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally on 9 April 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his business supplier who happened to be a local member of the political party Pakistan Peoples Party (“PPP”) due to their personal monetary dispute and also because he supported rival party Pakistan Muslim League (N) (“PML(N)”), and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Lahore, Pakistan. After leaving school he ran his own poultry business selling chicken in the market of his home district to make his living, and supported PML(N) regularly attended their local meetings and activities and distributing the party’s leaflets and posting up banners in the neighborhood.

3.  For his poultry business the Applicant purchased his stocks from his supplier Mehmood who happened to be a local member of PPP, and in 2007 the Applicant rented 2 trucks from Mehmood for his business, but after the Applicant lost his business in late 2007 when his customers failed to pay for their goods, the Applicant sold Mehmood’s trucks and fled to Islamabad and Gujranwala.

4.  However, in June 2008 the Applicant was located by Mehmood’s followers who then took abducted him to a remote place where they beat him severely for several days, but the Applicant eventually managed to make his escape and sought the assistance of the police who then took him to a local hospital for medical treatments.

5.  Upon his discharge from the hospital, the Applicant took shelter in a friend’s place, and fearing of further threats from Mehmood, he departed Pakistan on 2 April 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 7 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 22 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.  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 Mehmood and his followers 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 Mehmood to seriously harm or kill him other than to return the trucks or to pay for them, that in any event it was a private monetary dispute between him and Mehmood 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 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 Peshawar where it would be difficult if not impossible for Mehmood to locate him.

8.  On 29 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the originally scheduled hearing on 17 September 2019 and again the re-scheduled hearing on 10 October 2019 for alleged medical reason but which was found by the Board as not credible or reliable and unsupported by any medical evidence, and that the Board proceeded to deal with the appeal in the absence of the Applicant and on papers based on the material and information earlier provided by him to the Director and which were available before the Board. On 15 November 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from his poultry supplier Mehmood who was also a rival political supporter over their monetary dispute but found no reliable evidence of any real intention of Mehmood to seriously harm or kill him due to either their monetary dispute or for any political reasons, and that in any event it was a private and personal monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan to negate any risk from Mehmood that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 25 November 2019 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 failed to consider the Applicant’s fear that he would face in his home country;

(2)  That the Board failed to consider the Applicant’s claim under BOR 2 or BOR 3 risks;

(3)  That the Board failed to consider the relevant COI.

11.  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 how did the Board fail to consider his claim under BOR 2 or BOR 3 risks or to assess the relevant COI properly. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

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 his claim on its finding of the availability of state and police protection to negate his claimed risk from Mehmood 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 as well as the relevant COI available before the Board, 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 established by the Director in his decision that the risk of harm in the Applicant’s claim 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.

15.  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.  Moreover, the Applicant recently on 24 March 2025 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to Pakistan.

17.  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