Khan Muhammad Jahangir v. Torture Claims Appeal Board
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HCAL 2181/2020 [2025] HKCFI 2812 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2181 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
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 53-year-old national of Pakistan who entered Hong Kong illegally on 2 December 2018 and surrendered to the Immigration Department on 6 December 2018 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his paternal cousin over their monetary dispute in his home village. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Village Waisa, Tesil Hazro, Attock, Punjab, Pakistan. After leaving school he worked as a farmer, married his wife and raised a family with 5 children in his home village. 3.In 1985 his paternal cousin who resided in UK asked the Applicant to manage his cousin’s agricultural land and property in his home village including collecting and safe-keeping the earnings from the crops grown on the agricultural land. 4.In 1996 the Applicant lent his cousin’s money to another relative for urgent need and who promised to repay the money very soon, but when his relative subsequently failed to do so, and later when his cousin found out about it and demanded the Applicant to repay the money, and when the Applicant was unable to do so, his cousin became furious and threatened to kill him. 5.Shortly thereafter the younger brother of the Applicant disappeared from the village and was later found dead, of which the Applicant suspected that his cousin was responsible so as to send him a warning that he would meet the same fate if he still failed to repay the money. 6.For the following years the Applicant with the help of other family members had been trying to negotiate with his cousin to settle the matter but to no avail, and as his cousin continued to make threats against him, the Applicant in 2005 fled from his home village to take shelter in places of various friends and relatives in different towns and cities, and in 2018 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 March 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 18 June 2019 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 found no substantial grounds for believing that there will be any real risk of him being harmed by his cousin upon his return to Pakistan due to the absence of or low intensity and frequency of past ill-treatment from his cousin, that there is no evidence that his cousin was responsible for his brother’s death or of any real intention of his cousin to seriously harm or kill him when there was no attempt to do so over the many years from 1996 up to 2018 when the Applicant left the country, that in any event it was a private monetary dispute between the 2 of them within their 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 207 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 his cousin to locate him. 9.On 28 June 2019 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 28 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his cousin that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of his cousin to seriously harm or kill him over all those years up to 2018 when the Applicant left the country, and that in any event it was a private monetary dispute between just the 2 of them within their family only without any official involvement that state or police protection would be available to the Applicant upon his return to if resorted to 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 his cousin that his claim for non-refoulement protection failed on all applicable grounds. 11.On 30 October 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 repeated his claim as before 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 of the Board’s decision. 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 53 – 92 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 both the Director and the Board in their respective decisions that the risk of harm in his 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, 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 May 2025 filed an affirmation requesting to withdraw his application as he now wants to return to his home country. 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, and in view of his latest confirmation of his wish to withdraw his application and to return to his home country, I accordingly dismiss his leave application. Dated the 17th 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
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Cases cited in this judgment