Case Document

100%

HCAL 19/2020

[2025] HKCFI 3814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 19 OF 2020

BETWEEN
	Ammar Arif	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 32-year-old national of Pakistan who entered Hong Kong illegally on 1 October 2017 and was later arrested by police. After he was referred to the Immigration Department for investigation, he raised non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Malkan Da Mohallah, Kunjah, Gujrat, Pakistan and later moved to Korangi Town, Karachi, Sindh, Pakistan. After leaving school he worked as a salesman in his home district to make his living.

3.In 2008 or 2009 when the Applicant was studying, he met and formed a relationship with his girlfriend who came from a wealthy and influential family in his home district. Given the vast difference in wealth and social status between their 2 families, the Applicant managed to secretly visit his girlfriend at her home at night from time to time and kept their relationship a secret from her family.

4.In June 2009, the Applicant was discovered by his girlfriend’s father and brother and was attacked by them. As a result he suffered internal injuries and cut wounds by a knife and injuries to his head that required stitches and was hospitalised for a few days. The Applicant’s girlfriend’s family then filed a false case with the police against him for rape and kidnapping but the case was not pursued.

5.In early 2011, the Applicant eloped with his girlfriend and lived together at his uncle’s place in Islamabad and her family filed another criminal case for abducting her. Then one day in March 2011 when the Applicant and his girlfriend were on the streets in Islamabad, they bumped into her father and his men who fired pistol at them, killing his girlfriend in the encounter. The Applicant was unharmed and escaped the scene and fled to Korangi, Karachi and hid at his friend’s place. Subsequently the Applicant was informed by his friend that his girlfriend’s family filed a murder case against him for her death, but after the shooting incident he did not encounter her family again.

6.In order to avoid arrest the Applicant decided to leave Pakistan, and so on 18 August 2017 he departed 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 2 October 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 15 November 2018 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 and substantial risk of him being harmed or killed by his girlfriend’s family upon his return to Pakistan 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 other than to press him to end his relationship with his girlfriend, that there was no evidence at all that he was wanted by the local police or in any way being denied access to justice and fair trial, that in any event it was a private relationship dispute between him and his girlfriend’s family 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 204 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 Lahore or Karachi where he has stayed without any incident for more than 5 years and where it would be difficult if not impossible for his girlfriend’s family to locate him.

9.On 27 November 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 on 19 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 November 2019 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 girlfriend’s family over their relationship that caused him to leave Pakistan to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of his girlfriend’s family to seriously harm or kill him other than to press him to end the relationship, and that in any event it was a private relationship dispute between him and his girlfriend’s family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.On 2 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge which he confirmed at the scheduled hearing :-

(1) That the Board is in breach of procedural fairness for unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) That he was not given legal representation in his appeal before the Board;

(3) That there was no language assistance for him for the translation of the documents in the hearing bundle for his appeal before the Board as he was unable to read or understand English;

(5) That the Adjudicator wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection will be available to the Applicant which is contradicted by the available COI on the true situation in Pakistan; and

(6) That the Board’s decision had never been read or interpreted to the Applicant that he still does not have full understanding of why his appeal was rejected by the Board.

12.These are however just vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaboration as to how they apply to his case or how the Board or the Adjudicator has erred in the decision, or in what way the Adjudicator failed to make proper inquiry into relevant COI or was biased against the Applicant or wrongly exercised his case management power in his assessment of the availability of state protection in Pakistan. As none of these assertions were properly elaborated or presented with the necessary and relevant particulars by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.As for his complaint of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable for his intended challenge.

15.Regarding his complaint of no language assistance for those documents in the hearing bundle for his appeal before the Board which were in English, it is noted that most of those documents such as his NCF or record of interview had in fact already been made available to him earlier when he was represented by lawyer from DLS, that in his appeal hearing before the Board he was able to make proper representations for his case without any problem, and that he never raised any such issue to the Board that I do not find any merits in this complaint of the Applicant.

16.As for his complaint that he was given the Board’s decision without any translation that he did not fully understand the reasons why his appeal had been dismissed, it is clear that this complaint in itself cannot amount to be any proper basis to challenge the Board’s decision and hence is not reasonably arguable for his intended challenge either.

17.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: 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.

18.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 73 - 115 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.

19.Furthermore, the fact is that that it has also been correctly established by the Director in his decision that the risk of harm in his claim 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 in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.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.

21.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.

(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 Ammar Arif 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 14585/18/11/428/P2908 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4339/18 (formerly RBCZ 11867/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)