Maroof Ashar v. Torture Claims Appeal Board

HCAL 971/2024

[2025] HKCFI 1170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 971 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 the Applicant being absent 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 23-year-old national of Pakistan who entered Hong Kong illegally on 15 December 2021 and was arrested by police on 31 December 2021.  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 the Said family due to the political disputes between them and his family and/or by the local supporters of the political party Pakistan Tehreek-e-Insaf (“PTI”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Chak Dowlat, Khari Shareef, District Mirpur, Pakistan where his family going back to the time of his grandfather had always supported PML(N) but had had a history of serious political disputes with the Said family in the home village who supported their rivals Pakistan Peoples Party (“PPP”) and PTI which had led to numerous violent confrontations between members of their 2 families and/or the local PTI supporters, including firing gun shots and injuring each other as well as making false charges to the police against each other.

3.After leaving school the Applicant followed his family’s tradition to support PML(N) regularly attended their local meetings and activities together with other members of his family.

4.In April 2018 while the Applicant and other members of his family were assisting PML(N) in its election campaign, they were attacked by members of the Said family and the local PTI supporters that they suffered serious injuries and were subsequently taken to the local hospital where the Applicant was hospitalized for more than 2 weeks due to his head injuries. 

5.Upon his discharge from hospital, the Applicant became fearful for his life and together with his brother fled from their home village to Lahore, but later when he heard that the said family had sent men looking for him everywhere, the Applicant on his family’s advice subsequently in October 2019 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 22 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.By a Notice of Decision dated 25 July 2022 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 Said family and/or the local PTI 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 for the Said family or the PTI supporters to specifically target the Applicant given the fact that other members of his family are still living in his home village without any incidents, that in any event it was a private political dispute between his family and the Said family only without 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 242 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for the Said family or those local PTI supporters to locate him.

8.On 8 August 2022 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 6 May 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 May 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of family’s political disputes with the Said family and/or the local PTI supporters but found no reliable evidence of any real intention of either of them to seriously harm or kill the Applicant or any political reason for them to specifically target him for harm, 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 as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 20 June 2024 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 other than some bare assertions that the Adjudicator had failed to properly assess his claim and that the internal relocation alternative suggested was not a reasonable one but without providing any necessary or relevant details or particulars or elaboration as to how it was so, nor did he 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.   

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 vDirector of Immigration [2018] HKCA 524.

12.In the Applicant’s 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 his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526. 

13.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.

14.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 27^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