Afzal Muhammad Umer v. Torture Claims Appeal Board

HCAL 616/2021

[2025] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 616 OF 2021

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;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 10 November 2015 and surrendered to the Immigration Department on 12 November 2015 when 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 terrorist group Tehreeq Taliban Pakistan (“Taliban”) for refusing to join them or to participate in their terrorist activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sialkot, Pakistan. After leaving school he worked as a salesman in his home district to make his living.

3.In 2010, he attended the preaching of a religious delegation from Lahore, and was subsequently invited to join their training camp in Lahore when he discovered that it was in fact organized by the Taliban for new recruits to learn their religious extremism as well as terrorist tactics and activities.

4.In late 2013, the Applicant was allowed to return home in Sialkot to visit his family, but in early 2014 he received messages from the Taliban with instructions for him to carry out a holy mission of a suicide bomb attack in Karachi.

5.As he never had any intention to commit terrorist acts, the Applicant informed his parents who then sent him to hide in his aunt’s place in Gujjrat, and on 5 November 2015 he was arranged by his parents to leave the country to save his life by departing Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 October 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 21 November 2018 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”).

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 the Taliban 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 them to harm or kill him other than his own speculation, nor is it accepted that after all these years since he left the country that the Taliban would still have any adverse interest in him, 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 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 or Islamabad where it would be difficult if not impossible for anyone to locate him.

8.On 5 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 16 October 2020 before the Board without any explanation or to respond to the Board’s subsequent enquiry as to his non-attendance, nor did he request another hearing for his appeal, and as a result the Board proceeded to deal with his appeal in his absence and on paper based on the material and information available before the Board. On 17 March 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies discrepancies and deficiencies in the Applicant’s claim previously provided to the Director and available before the Board but which he failed to attend the scheduled hearing so as to clarify or explain them to the Board 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, that even if his claimed risk were real that there is no evidence that the Taliban had taken any action to go after him or to make any threats against him, nor is it accepted that after all these years since he left the country that the Taliban would still have any adverse interest in him that it concluded that the Applicant had failed to establish that he will face any risk of harm from the Taliban upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.On 3 May 2021 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. 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 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 and in the absence of any clarifications or explanations from him as to the various inconsistencies discrepancies and deficiencies raised by the Board in the decision given his failure to attend the scheduled hearing for his appeal without any explanation, and in the absence of any error of law or procedural unfairness in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.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 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 confirmed and agreed 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.

14.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.

15.Moreover, the Applicant recently on 4 October 2024 filed an affirmation requesting to withdraw his application as his problem in his home country has been solved that he now wants to return to Pakistan.

16.In the premises, 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, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 14^th day of January 2025

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