Case Document

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HCAL 13/2020

[2025] HKCFI 3817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 13 OF 2020

	Umair Arshad	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;

Order by Hon S T Poon J:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan, who entered Hong Kong illegally on 11 May 2007, and was arrested by police on 14 May 2007. 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 people of the hostile ethnic group Sunni and/or local supporters of the Jamiat Ulema-e Islam (“Jamiat”) for being a Shi’a Muslim and for supporting a rival political party Anjumane-Talbah Islam (“ATI”), 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 Mohallah Kotli, Munsheyan, Sialkot, Pakistan. After leaving school he worked as a garment salesman in his home district, and because of the influence of a relative and the Applicant’s discontent against the Sunni people for being disrespectful towards the Shia people, he supported ATI regularly attended their local meetings and activities.

3.As early as in 1998, the Applicant was attacked by some young Sunni people with wooden sticks who broke his arm which required surgery. Then the Applicant continued to experience hostility from the Jamiat or the Sunni people. In 2002, the Applicant took over his relative as the Deputy Counselor of ATI in his home district and then in 2004, the Applicant’s car window was smashed by the Jamiat members during which he suffered cuts by shattered glass.

4.After the attack, the Applicant was also involved in another clash in retaliation against the ATI members and then fled to Head Marala Area away from his home district and stayed there for 3 months, but he was arrested by the police for the death of an ATI member and was ultimately released before moving to his uncle’s place in Lahore for a year. In late 2005, the Applicant moved back to his home village and was arrested again by the local police, but he was somehow taken to a Jamiat office and beaten by the Jamiat members before he was taken to the police station and was released shortly afterwards without any charge.

5.The Applicant suspected that the Jamiat members has bribed the local police and therefore he fled to Islamabad before departing Pakistan in 2007 for China and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 28 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 July 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”).

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 the Sunni people or the Jamiat members upon his return to Pakistan as low due to the absence of or 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 to still have any adverse interest in him after all these years since he left the county, that in any event it was a personal and private dispute between them 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 205 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 Lahore or Islamabad where the Applicant has stayed before without incident and where it would be difficult if not impossible for the Sunni people or the Jamiat members to locate him.

8.On 9 July 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 with the assistance of an interpreter on 1 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2019, 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 doubted the credibility of his claim of fear of harm from the Sunni people or the Jamiat members that caused him to leave Pakistan to come to Hong Kong to seek protection, that relevant COI revealed that ATI had strong links to the Sunni people instead of the Shia people, that his lack of knowledge or incorrect information as to the political situations in Pakistan or of the political philosophy of ATI, particular when he stated he held a position of Deputy Counsellor in his home district, further undermined the credibility of his claim of alleged political involvement in Pakistan that it concluded that there was no credibility in his claim at all that his application for non-refoulement protection failed on all applicable grounds.

10.On 2 January 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 his supporting affirmation of the same date other than a regurgitation of his claim as before and some bare assertions that internal relocation was impossible that his life would still be in danger in his home country but without providing any relevant evidence or COI to corroborate his such assertions, nor was he able to put forward any proper ground for his intended challenge at the hearing of his application. 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. 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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector 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 41 – 65 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 vJenkins & 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 all 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.

(Yau Shiu-lun)
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 Umair Arshad 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 12899/18/8/169/P2509 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2393/18 (Formerly RBCZ 2001272/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)