Qadeer Muhammad v. Torture Claims Appeal Board

HCAL 883/2020

[2025] HKCFI 2233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 883 OF 2020

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 36-year-old national of Pakistan who entered Hong Kong illegally on 4 August 2012 and was arrested by police on 9 August 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of a friend for falsely blaming him of murdering his friend, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Adal Zai, Tehsil, District Hazro, Attock, Punjab, Pakistan.  After leaving school he worked as a as a security guard to make his living, and continued to reside with his parents in his home village.

3.There was a girl in the village by the name of Sidra who was a friend and a distant relative of the Applicant but somehow her family for some unknown reason disliked the Applicant by often slapping him around for no reason.

4.One day in November 2011, while Sidra and her boyfriend Laqman were visiting the Applicant at his place of work, Sidra and Laqman broke into a heated argument during which Laqman pulled out a pistol and shot Sidra in the stomach that she fell onto the ground, whereupon Laqman immediately fled from the scene and disappeared.

5.The Applicant was shocked by the incident, and as he was alone at the scene, he called a friend for help, and together they brought Sidra to the hospital where she was later pronounced dead, whereupon the Applicant gave the hospital the telephone number of her family so that they could inform her parents of her death.

6.However, later in the afternoon the Applicant received a telephone call from his father informing him that Sidra’s family had somehow suspected that it was the Applicant who had killed Sidra and therefore made a report to the police, and that some policemen had come looking for him.  

7.As a result the Applicant became fearful for his safety and fled to Rawalpindi to hide in a friend’s place, and on 14 December 2011 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 torture claim to the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 23 May 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend screening interview before an immigration officer due to alleged medical reasons. 

8.By a Notice of Decision dated 17 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

9.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 Sidra’s family 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 of any adverse interest of the police in him given the fact that he was able to leave the country without any problem, that in any event it was a private personal dispute between the Applicant and Sidra’s 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 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 where it would be difficult if not impossible for Sidra’s family to locate him.

10.On 28 August 2018 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 20 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 16 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence which were wholly different from those provided by him earlier to the Director and which he was unable to explain or clarify that it completely undermined the credibility of his claim, and concluded that the Applicant is not a witness of truth and that he had failed to establish that he would be exposed to any real risk of harm of any form upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 

12.On 12 May 2020 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 in which he just stated that he is not satisfied with 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.

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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 73 of 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.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.Moreover, the Applicant recently on 17 March 2025 filed an affirmation requesting to withdraw his application as his problem in his home country has now been resolved.

18.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 3^rd day of June 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