Case Document

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HCAL 79/2021

[2025] HKCFI 2626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 79 OF 2021

BETWEEN
	Ahmed Iftikhar	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 46-year-old national of Pakistan who entered Hong Kong illegally on 21 October 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by an acquaintance in his home district due to their personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in District Jhelum, Punjab, Pakistan. After leaving school he worked as a driver, got married and raised a family with 3 children in his home district.

3.In 2007 he got acquainted with a fellow driver Abid Razaq, and through him the Applicant got to know a girl by the name of Naila, and soon started to date her, but when Abid Razaq found out about their relationship, he became jealous and demanded the Applicant to stop seeing Naila, and when he refused Abid Razaq then made threats against him, but the Applicant just ignored him and continued to date Naila.

4.One day in mid-2007 while he was driving home, the Applicant was intercepted by Abid Razaq and several of his friends who then pulled him out of his car and beat him, then they forced him into their car and drove to the home of one of the men where they continued to beat him, while one of the men also sodomized him before eventually he released to return home.

5.Later when his wife found out about his affair with Naila, she and her family drove him out of their home, and so the Applicant took shelter in an aunt’s home in Kotla Haji Shah.

6.However, in April 2008 the Applicant heard that Abid Razaq and his friends were looking for him everywhere, he therefore fled to Karachi, and on 7 October 2009 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 10 December 2014 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 2015 and a Notice of Further Decision dated 22 May 2017 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 Abid Razaq and his men 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, that in any event it was a private and personal dispute between him and Abid Razaq 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 196 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 where it would be difficult if not impossible for Abid Razaq or his men to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 4 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 November 2020 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it found the Applicant not a witness of truth or to have told the truth in relation to critical elements of his claim that it did not accept that he had a relationship with Naila or that he had ever been harassed or threatened or assaulted by Abid Razaq or his men or anyone else due to his alleged political activities or his relationship with Naila or that he fears returning to Pakistan for the reasons he had claimed or for any other reason, nor did it accept that there a real risk anyone in Pakistan will harm him for any of the reasons he had claimed upon his return to Pakistan, and concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

11.On 25 January 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 forward 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.

12.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.

13.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 83 – 129 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.

14.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.

15.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.

16.Moreover, the Applicant recently on 9 April 2025 filed an affirmation requesting to withdraw his application as he now wants to go back to his home country but without any explanation as to what has happened to his claimed risk in Pakistan.

17.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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 26^th day of June 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 June 2025 Ahmed Iftikhar Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 1021/15/2/169/P315 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1063/14 (formerly RBCZ/2857/09), RBCZ/9001615/17 (formerly RBCZ/2857/09) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)