Rana Miran Bakhsh v. Torture Claims Appeal Board
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HCAL 1370/2020 [2025] HKCFI 4319 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1370 OF 2020
Application for Leave to Apply for Judicial Review 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 39-year-old national of Pakistan who entered Hong Kong illegally in September 2013 and was arrested by police some 7 months later on 30 April 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Village Chak, Mogi, Tehsil Jaranwala, District Faisalabad, Punjab, Pakistan. After leaving school he farmed on his family’s farmland, and followed his family’s tradition to support PPP regularly attended their local meetings and activities together with his brother but without holding any official post in the party. 3.In 2003 there was an ongoing quarrel between his brother and a friend who owed his brother money, and one day in December 2003 that friend who was a PML(N) member arranged for some of the PML(N) people to shoot and kill the Applicant’s brother, which was witnessed by the Applicant who then reported the murder to the police, and for which the Applicant soon started to receive threats from the PML(N) people. 4.One day in 2005 while he was working on his family’s farmland, some unknown men fired gun shots at him from a distance, but the Applicant managed to escape unharmed and ran back to his house, and while he could not recognize any of those men, he suspected that they were PML(N) supporters trying to silence him about his brother’s murder. 5.In 2007 some false case was brought against him which the Applicant suspected was also by the PML(N) people and which was eventually dismissed by the court, while on another occasion while he was riding a motorcycle in his home village, the Applicant was pushed by 2 other motorcyclists that he fell and fractured his left leg that required medical treatments, and while he did not know those motorcyclists, he suspected that they were also sent by the PML(N) people to kill him. 6.After the last incident the Applicant became fearful for his safety, and in 2008 he moved to Sialkot to stay away from threats from those local PML(N) supporters, and in 2010 he then moved to Lahore and Karachi, but later when he was told by his family that the PML(N) people were still looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so on 22 July 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 13 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 28 March 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 material inconsistencies discrepancies and contradictions in his case that his credibility was not credible or reliable and which was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 7 months later and only after his arrest, that even if his claimed risk were real that the level of risk of harm from those local PML(N) supporters upon his return to Pakistan is assessed 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 them to seriously harm or kill him or that they were behind those alleged incidents other than the Applicant’s own suspicion or speculation, nor is there any political reason for the PML(N) people to specifically target him given that he was just an ordinary PPP 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 205 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 Lahore where it would be difficult if not impossible for anyone to locate him. 9.On 10 April 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 21 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 June 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it considered him to have no general credibility whatsoever, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 7 months later and only after his arrest by the police, and concluded that his claims to have been a supporter of PPP and to have on-going problems with the PML(N) supporters in his home village were wholly untrue that it was not satisfied that he would face any real risk of harm from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 11.On 2 July 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 in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth any proper ground for his intended challenge, nor was he able to do so 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 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 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 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. 15.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. 16.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 23rd 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