AHMED MIR SAJJAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 47/2020

[2025] HKCFI 3767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 47 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 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 39-year-old national of Pakistan who entered Hong Kong illegally on 10 May 2009 and was arrested by police on the same day. 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 his girlfriend’s family who objected their relationship and after his torture claim was rejected. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Kunjah, Gujrat, Punjab, Pakistan. After leaving school he ran a shop selling gas cylinders which also provided mobile phone messaging service and sold pre-paid phone cards.

3.  In October 2007, the Applicant made acquaintance and starting dating a girl named Samina from a Shia Muslim family. Due to social stigma against marriage between Sunni and Shia Muslims, Samina’s family objected their relationship and in March 2008 her brother, Mohammad Afzal (“Afzal”), not only came to the Applicant’s shop and threatened him with a pistol, in July 2008 after the Applicant persuaded Samina to convert to a Sunni Muslim, Afzal and his men even kidnapped the Applicant to a remote area, tied him up and poured hot water to his lower body and beat him until he lost consciousness. He was later found and taken to hospital by his uncle. During the Applicant’s hospitalization, Afzal visited his home but could not locate the Applicant so he made deaths threats against the Applicant to his father.

4.  After the attack the Applicant became fearful for his safety and fled to Wazeerabad and then Winjowali and stayed with his two aunts for 8 months during which Afzal visited the Applicant’s home and kidnapped his brother, who was released after the Applicant’s father signed a document that Afzal would shoot the Applicant on sight.

5.  In April 2009, the Applicant’s father decided to send the Applicant away to avoid Afzal, and so on 26 April 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police the Applicant then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 12 April 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 29 June 2018 the Director of Immigration (“Director”) rejected their claims on all the remaining applicable grounds other than torture risk including risk of their 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 Afzal and/or the Samina’s family upon his return to Pakistan as low due 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 to seriously harm or kill him other to deter him from seeing Samina, that in any event it was a private and personal dispute between them 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 where it would be difficult if not impossible for anyone to locate him

8.  On 13 July 2018 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 5 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found that the Applicant was not a credible witness for the various inconsistencies and discrepancies in his evidence that it rejected the credibility of his claim of fear of harm from Afzal and/or Samina’s family that caused him to leave Pakistan to come to Hong Kong to seek protection, that even accepting the Applicant has indeed suffered the injuries as claimed such injuries were not inflicted by Afzal because of his relationship with Samina, and concluded that the Applicant had failed to establish his case that he will face any harm of any nature from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 6 January 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 in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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.

11.  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.

12.  In the Applicant’s case, 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.  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.  Moreover, the Immigration Department in writing on 6 August 2024 informed the Court that the Applicant had earlier been removed from Hong Kong to his home country.

15.  In the premises, and as Section 37ZF (1) of the Immigration Ordinance stipulates that a non-refoulement claim pending determination made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, as did the Applicant on 20 April 2023 as confirmed by the Immigration Department, 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