NAZAM ABBAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 3417/2019

[2025] HKCFI 1313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3417 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 39-year-old national of Pakistan who entered Hong Kong illegally on 18 July 2007 and was arrested by police on 24 September 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain member of the Islamic fundamentalist terrorist group Taliban for refusing to join their activities. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Mianwal, District Gujrat, Punjab, Pakistan. After leaving school he assisted his father in his farming in their home village.

3.  In early 2007 he made friend with a man by the name of Balal in a religious study group in the local mosque, but when subsequently Balal revealed to be a member of the Islamic fundamentalist group Taliban and tried to persuade him to join their activities to make bombs and to carry out suicide missions, the Applicant became fearful and refused to join the Taliban, whereupon Balal left angrily after making threats against the Applicant.

4.  About a week later one night Balal came with some unknown men to the Applicant’s home and fired gun shots from outside but later left when other villagers started to gather, but for which the Applicant became concerned for his safety and therefore fled from his home village to Gujranwala to take shelter in a friend’s place, and on 15 July 2007 the Applicant 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 15 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 28 August 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Balal or the Taliban 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 that they would still have any adverse interest in him after all these years since he left the country in 2007, 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 196 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 Islamabad where it would be difficult if not impossible for the Taliban to locate him.

7.  On 10 September 2014 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 27 January 2015 together with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made by his lawyer on his behalf. On 8 July 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it did not consider him to be a credible or reliable witness and gave no weight to his such evidence that it doubted and rejected the credibility of his claim of fear of harm from the Taliban that caused him to leave his country to come to Hong Kong to seek protection, and concluded that the Applicant would not face his claimed risk of harm from the Taliban upon his return to Pakistan that his claim for non-refoulement protection failed on all the applicable grounds.

9.  Meanwhile on 21 December 2016 the Director on his own volition invited the Applicant to submit any addition facts which he may consider relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2), and in the absence of any response or reply from the Applicant, the Director by a Notice of Further Decision dated 12 January 2017 also rejected his BOR 2 Claim upon finding that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

10.  On 9 March 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was filed outside the 14‑days period to appeal as required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 25 October 2019 the Board refused the late filing of the Applicant’s Notice of Appeal upon finding that it was late by some 2 weeks, that the Applicant’s explanation of not receiving the decision until 7 March 2017 was not credible or acceptable, and that there were no other relevant matters of fact within its knowledge that might make it unjust not to allow the late filing of his Notice of Appeal.

11.  On 18 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or 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. 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, and given the fact that the Board did already properly consider all the factual issues of his non-refoulement claim in its earlier decision and which the Applicant did not bring any challenge, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board either.

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 refused the late filing of his appeal against the Director’s Further Decision in rejecting his BOR 2 Claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of having already heard him in his oral evidence and his answers to questions raised of his claim in his first appeal to the Board, and having properly and in my view correctly rejected his non-refoulement claim under all the other applicable grounds in its earlier decision and which the Applicant never sought leave to apply for judicial review, and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions 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 earlier 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.

15.  In the premises, and having considered both decisions of 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 under all the applicable grounds.

16.  Moreover, the Applicant recently on 24 February 2025 filed an affirmation requesting to withdraw his application as he wants to go back to his home country but without any explanation as to what has happened to his claimed risk in Pakistan.

17.  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