ZAHAD NOBEEL v. TORTURE CLAIMS APPEAL BOARD

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 27-year-old national of Pakistan who was first arrived in Hong Kong on 11 May 2012 at the age of 14 with permission to remain as a dependent of his father who was a permanent resident in Hong Kong, but in 2023 he was arrested by police for illegal gambling and possession of invalid identity card and ATM card which belonged to another person, and for which he was subsequently convicted and sentenced to prison for a total of 10 months. After he was discharged from prison and was issued by the Immigration Department with a deportation order, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) due to his father’s political involvement with their rival Pakistan Tehreek-e-Insaf (“PTI”).  

2.  The Applicant was born and raised in Village Lehri, District Mirpur, Azad Kashmir, Pakistan until 2012 when he was 14 and came to Hong Kong to join his father who was a permanent resident for many years but was also a PTI member in his home district in Pakistan, and after having subsequently emigrated to Hong Kong his father continued to support PTI, and that during general elections he would return to Pakistan to participate in their election campaigns.

3.  However, in 2023 the Pakistani government led by PML(N) as the ruling party arrested former Prime Minister Imran Khan who was the chairman and founder of PTI, whereupon the PML(N) people also started to attack PTI members and supporters including many of the Applicant’s family members who were in Pakistan, and so after being served with the deportation order issued by the Immigration Department in September 2024, the Applicant was afraid to return to Pakistan and therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 December 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 16 January 2025, 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”).

5.  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 the PML(N) people upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of any PML(N) people to harm or kill him given the fact that he has been out of the country since 2012 other than some short visits and that he is not even a member or supporter of PTI at all so as to attract any adverse interest from the PML(N) people, 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 240 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 Hyderabad or Karachi where it would be difficult if not impossible for anyone to locate him.

6.  On 28 January 2025, 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 25 March 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 April 2025, his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any PML(N) people that caused him to overstay in Hong Kong to seek protection, and that there was no reliable evidence of any adverse interest of any PML(N) people in him or his father when both of them had been out of the country for years without any further political activities on the part of his father even if he were indeed a former PTI member while the Applicant even on his own case never had any political involvement of any sort at all in Pakistan before he left the country in his early teens in 2012 to come to Hong Kong that it is not accepted that the Applicant will face any such risk at all upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

8.  On 17 July 2025, 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any 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.

9.  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.

10.  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 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.

11.  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.

12.  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