AHMED NAURAIZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 466/2022

[2026] HKCFI 2991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 466 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 29-year-old national of Pakistan who entered Hong Kong illegally on 1 June 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 the family of his co-worker’s girlfriend who accused him of helping them to elope due to her family’s disapproval of their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Tahlianwala, Tehsil & District Jehlum, Punjab, Pakistan.  After leaving school he worked in some garments shop in his home village to make his living.

3.  In 2019 he befriended one of his co-worker Sharjeel who told him that he was dating a girl by the name of Saima from some wealthy and powerful family in the village.

4.  One day in March 2019 some men from Saima’s family came to the shop and accused Sharjeel of trying to elope with Saima as her family was against their relationship, and proceeded to beat Sharjeel violently, and when the Applicant tried to intervene, they also beat him that he suffered cut and bruises all over the body.

5.  Several weeks later those men from Saima’s family returned again looking for Sharjeel who was then not in the shop, whereupon they accused the Applicant of helping Sharjeel to try to elope with Saima again and proceeded to beat him with wooden sticks and other objects that the Applicant lost consciousness and collapsed onto the ground, and was subsequently taken to the hospital where he received medical treatments for 3 days.    

6.  Upon his discharge from the hospital, the Applicant went into hiding for fear of further attacks from Saima’s family, and when he later heard that those men from Saima’s family had tried to kill Sharjeel by firing gun shots at him, the Applicant became fearful for his own life and fled to Multan and then Gilgit City, and in October 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 7 December 2020 and attended screening interview before the Immigration Department with legal representation.             

7.  By a Notice of Decision dated 4 March 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”).

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 Saima’s family 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 for what was essentially some private dispute between Saima’s family and Sharjeel with nothing to do with the Applicant 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 Karachi where it would be difficult if not impossible for Saima’s family to locate him.

9.  On 15 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 22 July 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 May 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found no reliable evidence of any real intention of Saima’s family to seriously harm or kill him over what was essentially some private dispute between his co-worker Sharjeel and the family of his girlfriend Saima in his home village only without any official involvement and that the Applicant was not their main target that state or police protection would be available to the Applicant upon his return to Pakistan if needed from whatever risk of harm that may arise from such dispute between Sharjeel and Saima’s family that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

11.  On 13 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 stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, 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.

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 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.

14.  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 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.  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.  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