Ali Mirza Imran v. Torture Claims Appeal Board
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HCAL 2049/2020 [2025] HKCFI 4516 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2049 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 41-year-old national of Pakistan who entered Hong Kong illegally on 4 March 2008 and was arrested by police on 6 March 2008, and for which he was subsequently convicted and sentenced to prison for 14 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his neighbor over a land dispute between their 2 families in his home district, 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 Sialkot, Punjab, Pakistan where his father inherited a piece of land from his grandfather in their home district but which later became the subject of dispute with the Mirza family who in 2002 insisted that the land belonged to them, and which led them to later falsely accuse the Applicant’s father of illegal possession of the land that his father was arrested by the police and subsequently led to some court actions between the 2 families. 3.However, before any judgment from the court, the Mirza family already sent their people to occupy the land, and one day when the Applicant together with his friends tried to confront them, those men pulled out their guns and fired shots towards the sky to threaten the Applicant who had no choice but left the scene. 4.As the Mirza family had continued to make threats against the Applicant, by end of 2006 he was sent by his father away to take shelter in his uncle’s place, but as he later heard that the Mirza family had sent men everywhere looking for him, the Applicant decided that it was no longer safe to remain in Pakistan, and so on 6 February 2008 he departed Pakistan for China, and from there he later sneaked into Hong Kong and was subsequently arrested by police, and upon serving his imprisonment for illegal entry and was referred to the Immigration Department for deportation, 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 20 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By a Notice of Decision dated 29 May 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”). 6.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 Mirza family 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 Mirza family to seriously harm or kill him other than to keep him away from the land in dispute and given the fact that he was not even the legal owner of the land, that in any event it was a private land dispute between his family and the Mirza family 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 204 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 Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him. 7.On 6 June 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with the appeal on papers based on the materials and information provided by the Applicant earlier to the Director and available in the hearing bundle before the Board. On 13 August 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision. 8.In its decision[1], the Board accepted the Applicant’s claim of land dispute between his family and the Mirza family in his home village but found no reliable evidence of any real intention of the Mirza family to seriously harm or kill him other than angry words and empty threats, and that in any event it was a private land dispute between the 2 families in his home village only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan if resorted to that it is not satisfied that he will face any risk of harm or ill-treatment by the Mirza family or by anyone for any other reason if refouled to his home country that it concluded that his claim for non-refoulement protection failed on all the applicable grounds. 9.On 12 October 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 repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without explanation. 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. 10.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. 11.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision on the basis of the materials and information provided by the Applicant to the Director and the Board as well as relevant COI available before the Board, 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. 12.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 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. 13.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. 14.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 30th 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 [1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002049_2020_files/the_Board's_Decision.pdf |
Cases cited in this judgment