Shafiq Khan v. Torture Claims Appeal Board

HCAL 32/2021

[2025] HKCFI 4877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 32 OF 2021

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 / the Applicant being absent in open court;

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 56-year-old national of Pakistan who entered Hong Kong illegally on 6 October 2007 and was arrested by police some 4 months later on 18 February 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as 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 Muttahida Qaumi Movement (“MQM”) for refusing to pay them extortion money and/or arrested and tortured by the local police over some false charge brought against him by those MQM supporters.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Green Town, Karachi, Pakistan.  After leaving school he worked as a carpenter and then a hotel chef in various cities to make his living.

3.In 2004 he started his own hardware store business in Lahore which brought him a good profit, but since late 2006 some local MQM people started to come to his store to demand for extortion money, and to avoid trouble from them the Applicant would always pay what he could afford, but by 2007 those MQM people demanded more and more money which the Applicant could no longer afford, and for which they would make threats against him.

4.On one occasion while the Applicant was dealing with his customers in his store, those MQM people again came to demand for money, and when the Applicant refused, they started to attack him, but with help from his customers the Applicant was able to repel the attacks and even caused a head injury to one of them that the assailants eventually fled from the shop.

5.However, shortly thereafter those MQM people returned with the police and accused the Applicant of attacking them causing one of them the head injury, and as a result the Applicant was arrested and detained at the local police station for interrogation for 2 weeks with ill-treatments, of which the Applicant suspected that the police had been bribed by the MQM people to do him harm. 

6.Eventually the Applicant managed to make his escape from the police and fled to Karachi and Islamabad, and on 7 September 2007 he departed Pakistan 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 3 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

7.By a Notice of Decision dated 12 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from those MQM people 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 them to seriously harm or kill him other than to extort money from him, 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 196 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 Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him, while there is no reliable evidence of any adverse interest of the police in the Applicant as he was able to leave the country without any problem, and that if indeed the police are looking for him for any criminal offence that he would be regarded as a fugitive of the law and hence not entitled to non‑refoulement protection, and in which case he would under the laws of Pakistan be entitled to due process and to defend the charge with legal representation in a court of law upon his return to Pakistan.

9.On 24 December 2014 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 12 October 2016 before the Board during which he declined to give any oral evidence or to answer any questions raised of his claim by the Adjudicator for the Board despite being advised by the Board to do so, whereupon the Board proceeded to deal with his appeal without his evidence or answers but based only on the materials and information provided earlier by him to the Director and were available in the hearing bundle before the Board.  On 17 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s claim which he failed to explain or clarify when he declined to give any evidence or answers at his appeal hearing that the Board doubted the credibility of his claim of fear of harm from any MQM people or the police that caused him to leave his country to come to Hong Kong to seek protection, that even his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of those MQM people to seriously harm or kill him other than to extort money from him, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 those MQM people, while there is also no reliable evidence of any adverse interest that the police may have in him and which if true that he would be a fugitive of the law that he would not be entitled to non-refoulement protection that his claim for non‑refoulement protection failed on all the applicable grounds.

11.Meanwhile on 28 April 2017 the Director on his own initiative invited the Applicant to submit additional facts which he may consider relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and upon receiving no such additional materials from the Applicant other than a written signification of just his claim as before, the Director by a Further Decision dated 26 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non‑derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

12.The Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board did not hold any further oral hearing, and proceeded to deal with his appeal on papers, and by a Decision[2] dated 17 November 2020 the Board dismissed the Applicant’s appeal upon finding that he had failed to establish any real or substantial risk of his right to life under BOR 2 being violated upon his return to Pakistan, and that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground.  

13.On 8 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board as regard his BOR 2 Claim, 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 and stated that he is not satisfied with 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 under all the applicable grounds for the thorough and detailed analysis and reasoning set out in its 2 decisions on the basis of the materials and information provided by the Applicant but in the absence of any oral evidence or answers from him when he declined to do so at his previous appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board in either decisions.

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 from the MQM people even if real is a localized one and that it is not unreasonable or unsafe for the Applicant 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 refused to grant leave and accordingly dismiss his application.

Dated the 16^th day of October 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