Rashid Zafar Ghori Alias Rashid Zafar Alias Ghori Rashid Zafar v. Torture Claims Appeal Board

HCAL 1472/2024

[2025] HKCFI 984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1472 OF 2024

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegally on 4 January 2007 and was arrested by police on 5 June 2007. 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 certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.While being released on recognizance pending the determination of his claim from 2008 to 2023, the Applicant had been arrested on numerous occasions and convicted of various criminal offences including common assault, burglary, trafficking in and possession of dangerous drugs, and misleading a police officer, and was given various prison terms of up to 18 months.

3.The Applicant was born and raised in Gujranwala, Punjab, Pakistan. After leaving school he worked as a salesman, and supported PPP regularly attended their local meetings and activities in his home district.

4.One day in June 2004 during the general election when he together with his fellow PPP supporters were working at the polling station, they were threatened by a group of PML(N) supporters to stop working for PPP.

5.Later on the same night the same group of PML(N) supporters came to his house to attack the Applicant with wooden sticks which caused him to suffer cuts and bruises all over his body that he required medical treatments thereafter. 

6.After the attack the Applicant became fearful for his safety and fled from his home to Lahore to take shelter in a friend’s place, and on 31 December 2006 he 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 January 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

7.By a Notice of Decision dated 6 February 2024 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”).

8.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 those local PML(N) supporters 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 any political reason to specifically target him given that he was just an ordinary supporter without any official position in the party, nor is it accepted that there would still be any adverse interest in him after all these years since he left the country in 2006, 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 247 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 anyone to locate him.

9.On 19 February 2024 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 17 May 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 May 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from those local PML(N) supporters but found no reliable evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him for harm given that he was just an ordinary PPP supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan from any risk of being harmed by anyone that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 29 August 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Adjudicator failed to consider that the Pakistani government would not be able to protect the Applicant due to the fact that corruption and incompetency of the Pakistani police are still extremely serious while reports published by human rights watch in 2016 show that human rights abuses were carried out by the police on a regular basis and hence the situation in Pakistan is still tremendously dangerous for her citizens;

(2) That the Board failed to apply high standards of fairness in its determination that state protection would be available to the Applicant by applying the wrong test resulting in an unreasonable understanding of the basis of the Applicant’s claim;

(3) That the Adjudicator erred in concluding that the Applicant is not at real risk of ill-treatment upon his return to Pakistan upon concluding the intention of those local PML(N) supporters to harm the Applicant was due to highly personal nature related to revenge for the alleged assault inflicted on each other family instead of the fact that it was due to different political differences between them;

(4) That the Adjudicator wrongly considered that the life of the Applicant was not at risk and unreasonably drew the conclusion that because he could not remember the minute details of the assaults and incidents that he did not pass the credibility test;

(5) That the Board failed to recognize the fact that PML(N) is the current ruling party with a nationwide network and political status to influence the police;

(6) That the Adjudicator failed to consider the element of the Applicant’s mental suffering caused by the threats made against him with great stress and distress;

(7) That the Adjudicator failed to consider that PML(N) have continued to look for the Applicant even after 20 years to seek revenge against him by using their political influence to locate and persecute him.         

12.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his 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 apply high standards of fairness in assessing the Applicant’s claim or to take account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence is there to suggest that those local PML(N) supporters are still looking for him for some 20 years since he left the country in 2007, nor was the Applicant able to do so at the hearing of his application other than that he needs more time to collect new evidence in support of his claim despite having had some 15 years to do so that his request was refused by the Court as wholly unjustified. As such, and as none of his grounds were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.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.

14.In the Applicant’s case, the Board rejected his claim for the 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.

15.Furthermore, the fact is that it has also been 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.                

16.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.

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.

Dated the 25^th day of March 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