KHADIM QAISER AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2155/2023

[2025] HKCFI 5874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2155 OF 2023

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 1st Applicant and the 2nd Applicant being absent in open court (“the Applicants”);

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The Applicants are brothers of Pakistan nationals in their early 30s who arrived in Hong Kong on 26 August 2020 under their respective dependent visas, but upon the expiration of their dependent visas on 29 June 2022 they did not depart and instead overstayed in Hong Kong, and on 4 July 2022 they surrendered to the Immigration Department and raised their non-refoulement claims for protection on the basis that if they returned to Pakistan they would be harmed or killed by the Malik family who were local gangsters over their personal disputes in their home village. They were subsequently released on recognizance pending the determination of their claims.

2.  The Applicants were born and raised in Village Chak Sawari in Mirpur, AJK, Pakistan. After leaving school the 1^st Applicant (“A1”) ran a marriage celebration business in his home village assisted by his younger brother the 2^nd Applicant (“A2”).

3.  In early 2019, the Applicants ran into some disputes with the Malik family who ran a mobile phone business in the same neighborhood but which was in fact used as a front for their illegal activities and money laundering, and which eventually led to a violent confrontation between them resulting in the killing of 2 staffs of A1’s shop that A1 became fearful for his life and fled to Karachi to take shelter in a friend’s place, whereupon the Malik family turned their threats against A2, and after being injured in an attack A2 also fled to Karachi to join A1.

4.  Later, when they heard that the Malik family had sent their men looking for them everywhere, the Applicants felt it was no longer safe to remain in Pakistan, and so they made arrangements to marry their Hong Kong resident wives who then applied for them to come to Hong Kong under their dependent visas on 26 August 2020, and upon their subsequent divorces which led to the expiration of their dependent visas on 29 June 2022, the Applicants did not depart and instead overstayed, and on 4 July 2022 they surrendered to the Immigration Department and raised their non-refoulement claims for protection, for which they each completed a Non-refoulement Claim Form (“NCF”) in September 2022 and attended separate screening interviews before different immigration officers with legal representations from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 20 October 2022 and 21 October 2022, the Director of Immigration (“Director”) respectively rejected the claims of A1 and A2 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.  In his decisions, the Director took into account of all the relevant circumstances of the claims of A1 and A2 and assessed the level of risk of harm from the Malik family upon their 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 the Malik family to seriously harm or kill either of them, that in any event it was a private and personal dispute between the Applicants and the Malik family only without any official involvement that state or police protection would be available to both Applicants 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 236 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicants as able-bodied adults with working experience to move to other areas of the country away from their home district in large cities where it would be difficult if not impossible for the Malik family to locate either of them.

7.  On 1 November 2022, the Applicants each lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, for which the Board decided to deal with their appeals jointly together, and for which they attended an oral hearing on 17 April 2023 before the Board when they both gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 15 November 2023, their appeals were dismissed by the Board which also confirmed both decisions of the Director.

8.  In its decision[1], the Board found material inconsistencies and discrepancies between the respective evidence of the Applicants relevant to the core of the alleged feud between them and the Malik family that it doubted the credibility of their claims of fear of harm from the Malik family that caused them to leave their country to come to Hong Kong to seek protection, that even if their accounts of events prior to their departure of Pakistan were true that there was no reliable evidence of any real intention of the Malik family to seriously harm or kill either of them, and that in any event it was a private dispute between them and the Malik family only without any official involvement that state or police protection would be available to both Applicants upon their return to Pakistan as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located by anyone that both of their claims for non-refoulement protection failed on all applicable grounds.

9.  On 1 December 2023, the Applicants jointly filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1)  That the Board was in breach of procedural unfairness by unlawfully fettering its discretion in refusing their appeals on the ground that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with their appeals;

(3)  That the Board’s decisions to refuse their appeals were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to self-represented claimants;

(5)  That the Applicants were not given a fair opportunity to keep forward their submissions in an oral hearing nor were they invited to submit written submissions to the Board for their appeals;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information that resulted in it making groundless speculations that it is safe for them to return to their country of origin.

10.  These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or outdated, while it is clear that they both did attend an oral hearing before the Board for their appeals when both were able to make their proper representations to the Board without any problem. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants in their affirmation or at the hearing of their application, I do not find any of them reasonably arguable for their 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 Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, there is simply no justification to afford either of them 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 Applicants’ claims.

14.  Moreover, A2 on 31 October 2024 filed an affirmation requesting to withdraw his application as he has been granted a dependent visa but without any further details or supporting documentary evidence, and accordingly did not attend the hearing of his application.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in either of the Applicants’ intended application for judicial review, I refuse to grant leave and accordingly dismiss both of their applications.

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