Asif Nazeer Nomi v. Torture Claims Appeal Board
|
HCAL 1666/2020 [2025] HKCFI 4312 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1666 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: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 47-year-old national of Pakistan who had previously entered Hong Kong under a different name and overstayed and was repatriated, and later entered Hong Kong again under another identity and was arrested for certain criminal offences for which he was subsequently convicted and served a prison term before being repatriated to Pakistan, again sneaked back into Hong Kong sometime in September or October 2011, and was arrested by police on 20 December 2011, and for which he was charged with another criminal offence, and upon being convicted he was sentenced to another prison term of 12 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by certain members/supporters of the political party Pakistan Muslim League (Q)(“PML(Q)”) as he supported their rival Jamaat-e-Islami (“JeI”) and having witnessed crimes committed by those PML(Q) people, and after his torture claim was rejected, he then sought non‑refoulement protection on the same basis. 2.The Applicant was born and raised in Gujrat, Punjab, Pakistan. After leaving school he followed his family’s tradition to support JeI regularly attending their local meetings and activities with his father and elder brothers. 3.However, after a big fight occurred in 1998 between the supporters of PML(Q) and JeI during a local election in Gujrat with numerous injuries including the Applicant who was struck on the head with a wooden stick that he collapsed and was subsequently hospitalized for several weeks, his father decided to send the Applicant overseas to avoid any further risk, and so in December 1998 the Applicant departed Pakistan for Hong Kong under a passport in the name of Asif Nazir Butt as a visitor and subsequently overstayed, and more than one year later in February 2000 he was arrested and repatriated to Pakistan. 4.On 11 August 2002 the Applicant married a Chinese wife in Pakistan who was a Hong Kong resident, and on 21 August 2002 he came to Hong Kong as a visitor under another passport in the name of Asif Nazeer Nomi, and was subsequently allowed to stay as his wife’s dependent subject to annually renewable terms and conditions. 5.On 3 December 2003 the Applicant was arrested by police for robbery and taking a conveyance without authority, and was on 18 September 2004 convicted and sentenced to prison for 5 years, and upon discharge from prison he was repatriated to Pakistan on 26 October 2007. 6.Upon returning to his home district in Pakistan, the Applicant found a job working as a bodyguard for a businessman named Igbal who used to be a local chairman of JeI in Gujrat, but as he had many political enemies from PML(Q), Igbal therefore required the protection of body guards, and the Applicant was referred by his father to work as one of Igbal’s bodyguards. 7.During the next several years in the course of his job, the Applicant and his colleagues as well as Igbal and family members frequently faced violent attacks by PML(Q) supporters, in particularly from the 3 Chaudry brothers who were local PML(Q) leaders, and eventually one day in July 2008 Igbal was shot and killed outside his residence in a daylight attack by the Chaudry brothers and their men, and subsequently with witness statements provided by the Applicant and his colleagues, the police was able to arrest one of the Chaudry brothers, but with the other Chaudry brothers and their men still at large, and with threats from some local PML(Q) supporters warning him not to be a witness to the forthcoming trial of the arrested Chaudry brother, the Applicant became fearful for his life and fled from his home district to Mirpur, Azad Kashmir. 8.However, when he later heard that the PML(Q) supporters were looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so in early 2011 he departed 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”) in October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 9.By a Notice of Decision dated 18 December 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”). 10.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 those local PML(Q) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the PML(Q) people to harm or kill him or for them to have any political reason to target him or to have any adverse interest in him given that he was just an ordinary JeI supporter without holding any official post in the party, that in any event in the absence of 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 or Islamabad where it would be difficult if not impossible for anyone to locate him. 11.On 27 December 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 8 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 12.In its decision[1] the Board accepted the Applicant’s claim of attacks from the Chaudry brothers and their PML(Q) people during his job as a body guard for the local JeI leader Igbal but found no reliable evidence of any real intention of the PML(Q) people to harm or kill him or any political reason for them to target him or to have any adverse interest in him as being just one of the bodyguards of Igbal whom they had allegedly already killed or eliminated that there is simply no political reason for them to go after the Applicant, that in any event after all these years since he left the country that it is not accepted that there would still be any adverse interest in the Applicant, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan if needed 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 anyone that his claim for non‑refoulement protection failed on all the applicable grounds. 13.On 17 August 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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 of the Board’s decision. 14.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. 15.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI on the current political situation in Pakistan, 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. 16.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. 17.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. 18.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 18th day of September 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
|
Cases cited in this judgment