REHMAN ZIA UR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1587/2020

[2025] HKCFI 4515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1587 OF 2020

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 16 March 2019 and surrendered to the Immigration Department on 19 March 2019 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family due to their dispute over his religious conversion. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Village Chak, Abbasiya, Tehsil Liaqat-pur, District Rahim Yar Khan, Punjab, Pakistan, and later moved with his family to Jhelum City.  After leaving school he worked as a company manager in Jhelum City to make his living.

3.  In 2013, he dated and subsequently became engaged to his girlfriend Sidra who was a Shia Muslim, and under the influence of her family he also converted his religion to become a Shia Muslim.

4.  However, as he later disagreed with some of the ideologies of Shia Muslims, the Applicant subsequently re-converted back to be a Sunni Muslim, and even tried to persuade Sidra and her family to convert into Sunni Muslims but was rejected by them who then became furious with him by canceling their engagement and stopped Sidra from seeing him.

5.  One day in 2014 while shopping in the market in Jhelum City, the Applicant was confronted by several members of Sidra’s family who proceeded to attack him with wooden sticks that he suffered cuts and bruises all over the body and required medical treatment in a local hospital.

6.  After further attacks by Sidra’s family members on 2 occasions when the Applicant was beaten with wooden sticks that he again suffered injuries all over his body, and on the last occasion when one of them pointed a pistol at him threatening that next time they would kill him, the Applicant became fearful for his life and fled to Muzaffarabad to take shelter in a friend’s place, and on 5 March 2019 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 9 July 2019 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”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Sidra’s family upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that having already cancelled their engagement that there is no reason for Sidra’s family to seriously harm or kill the Applicant or to still have any adverse interest in him, 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 a large population of 207 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 Islamabad where it would be difficult if not impossible for anyone to locate him.

9.  On 18 July 2019, 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 before the Board during which he however declined to give further evidence or to answer any questions raised of his claim by the Adjudicator for the Board despite being advised to do so, and instead insisted to just rely on the materials and information provided earlier by him to the Director and available in the hearing bundle before the Board which he confirmed to be true.  On 7 July 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 his former girlfriend’s family over any religious dispute that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of his alleged religious conversion and the consequential dispute with his former girlfriend’s family were true that there was no reliable evidence of any real intention of them to seriously harm or kill him or to still have any adverse interest in him after having already broken off their engagement, and that in any event it was a private and personal dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all the applicable grounds.    

11.  On 29 July 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, nor did he subsequently attend the scheduled hearing of his application without explanation. 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.

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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision when the Applicant declined to clarify or explain various credibility raised of his account of events or to answer questions raised of his claim despite being invited and advised by the Adjudicator to do so, 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 when he also failed to attend the scheduled hearing of his application without any explanation, 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 both the Director and the Board in their respective decisions 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, 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.  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.  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