Khan Zohra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 238/2020

[2025] HKCFI 2072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 238 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;

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 22 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office dated 31 December 2019 confirming the decision of the Director of Immigration dated 26 July 2018, which rejected his non-refoulement claim on all applicable grounds other than risk of torture.

2.Despite his letter dated 30 April 2025 expressing his intention to withdraw the Leave Application, the Applicant changes his stance at the oral hearing, stating that he no longer wishes to return to his home country.  

Background

3.The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is unnecessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.I am not remotely satisfied that the Applicant has shown that his intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

5.In view of the seriousness of the issues involved, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).  I am satisfied that the Board correctly set out the burden and standard of proof, the law and key legal principles; assessed the evidence, COI materials, risks of harm, state protection and viability of internal relocation; and observed a very high standard of fairness.

6.The Applicant’s claim was based upon his fear that, if he were refouled to Pakistan, he would be killed or harmed by his distant relative Manzoor because of a land dispute.  The Board observed that, for the Applicant to succeed on that ground, it was necessary for him to show that there were substantial grounds for believing that there was such risk of harm and that the same was inflicted on him with the consent or acquiescence, active or passive, of a public official.  However:

(1)   The Board found that the low intensity of past ill-treatment by Manzoor was indicative of a small future risk of harm upon the Applicant.

(2)   Manzoor was not a public official.  There was no evidence showing any involvement of any public or government officials, or that the Applicant had been threatened by any public officials or person acting in an official capacity.

(3)   It was purely the Applicant’s speculation, without evidence, that Manzoor had influence on the police and they would not care about his case.  But even if it might be true that the police did not handle his case up to his expectation, it did not necessarily imply misconduct of the Pakistan police as a whole.  He did not seek assistance from other police station or other institutions.  

(4)   In addition, the Board had taken into account COI showing that there were on-going reforms with positive results in recent years and there was legal protection to citizens of Pakistan.

(5)   The right protected by BOR2 had no relevance to the matter complained by the Applicant. There was no evidence showing that he would be at risk of harm from capital punishment inflicted by the Pakistan Government.

(6)   The Applicant failed to established that he faced a genuine and substantial risk of being subjected to torture or CIDTP if returned.

(7)   The Applicant’s alleged fear of ill-treatment did not fall within the definition of persecution in that the incidents alleged were purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion, etc.

(8)   The Applicant could have reasonably relocated to elsewhere in Pakistan and earned a living there.

(9)   Based on these findings, the Board rejected the Applicant’s claim on all his grounds.

7.It was primarily within the province of the Board to assess evidence, COI materials, risk of harm, and viability of internal relocation, etc.  In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide his “political problems” afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see 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, etc.).

Conclusion

8.For these reasons, I dismiss the Leave Application.

Dated the 11^th day of July 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