Case Document

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HCAL 1098/2022

[2025] HKCFI 3726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1098 OF 2022

BETWEEN
	Athar Muhammad	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 34-year-old national of Pakistan who entered Hong Kong illegally on 19 May 2020 and subsequently raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s father who objected to their relationship and/or by his paternal uncles and cousins over their land dispute with his father 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 41 JB, Tehsil and District Faisalabad, Punjab, Pakistan. After leaving school he worked as a driver in his home district to make his living.

3.In 2011 he started dating his girlfriend, but later when her father discovered their relationship, he objected to their relationship and demanded the Applicant to put an end to it, and when the Applicant refused, her father then made threats against him including sending men to outside his home to fire gun shots at him, but the Applicant managed to escape unharmed.

4.To avoid such threats and harassments from his girlfriend’s father, the Applicant in 2012 departed Pakistan for Saudi Arabia to work as a driver until 2018 when he returned to his home village in Pakistan where he subsequently learnt that his father was having an ongoing land dispute with his paternal uncles which on one occasion led to a mass brawl between male members of the 2 families including the Applicant until it was intervened by other villagers.

5.However, after 2 further violent confrontations with his uncles and cousins, and on the second incident when his cousins fired gun shots at him but missed, the Applicant became fearful for his life and fled from his home village to Malipur, and on 29 October 2019 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 August 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 8 November 2021 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 his former girlfriend’s father or his paternal uncles and cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it is not accepted that his former girlfriend’s father would still have any adverse interest in him after all these years since he left Pakistan for Saudi Arabia and had stopped seeing his girlfriend since 2011, that there is no evidence of any real intention of his uncles or cousins to seriously harm or kill him in what was essentially a private land dispute between them and his father 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 227 million people spread across a vast territory of more than 770,000 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 anyone to locate him.

8.On 22 November 2021 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 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 July 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it did not consider him to be a witness of truth and that he had fabricated his claims for protection and rejected the credibility of his claim, and concluded that the Applicant had failed to establish that he would face any real risk of suffering any of the proscribed harms upon his return to Pakistan in the reasonably foreseeable future that his claim for non-refoulement protection failed on all applicable grounds.

10.On 18 October 2022 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 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.

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 v Director of Immigration [2018] HKCA 524.

12.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 45 – 70 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.

13.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.

14.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.

15.For 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 29^th day of August 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 29 August 2025 Athar Muhammad 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 29 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19281/21/11/201/P3570 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1403/21 (Formerly RBCZ 149/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)