Muhammad Asad Mehmood v. Torture Claims Appeal Board

HCAL 1720/2020

[2025] HKCFI 5133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1720 OF 2020

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 30-year-old national of Pakistan who entered Hong Kong illegally on 12 December 2019 and was arrested by police one month later on 12 January 2020. 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 the staff of an educational institution or Madrasa in his home village over their religious disputes.  

2.The Applicant was born and raised in Village Samaan, Tehsil Harzo, District Attock, Punjab, Pakistan where he in 2018 attended Islamic studies in an educational institution or Madrasa in Harzo City formed by the Sunni Islamist Deobandi organization known as Sipah-e-Sahaba Pakistan (“SSP”) which he was not aware was then banned as a terrorist organization by the Pakistan government.

3.Later when the Applicant gradually discovered various dubious activities of the Madrasa staff, and when he one day in classes raised questions about their teachings which the Applicant deemed to be illegal or immoral and against the teachings of Islam and the Shia Muslims, his teachers became furious and together with other staff beat him violently that he suffered cuts and bruises all over his body, but he managed to flee from the school and ran back home.    

4.After the incident the Applicant became fearful for his safety and stayed away from his home by hiding in a friend’s place in the village, but later when he heard that some Madrasa teachers had come to his home looking for him, he became fearful for his safety and fled to Karachi, and on 12 December 2019 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 9 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 8 April 2020 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”).

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 Madrasa staff or the SSP people upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the Madrasa staff to seriously harm or kill him or of any threats from any SSP members, 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 233 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 Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 20 April 2020 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 July 2020 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, and despite being explained and advised by the Adjudicator to do so in support of his claim that the Applicant was still reluctant to answer questions other than a mere yes or no or that he did not know. On 5 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from the Madrasa staff or the SSP people or the Pakistan authorities that caused him to leave his country to come to Hong Kong to seek protection, that it considered and determined that most if not all the core assertions to his non-refoulement claim had been fabricated or is wholly unreliable in particularly that his claimed profile as a target of the Madrasa or the SSP had been exaggerated to a significant degree that he was not considered a credible or reliable witness, and that according to the latest relevant COI that the attitude of the Pakistan government towards SSP has been well documented and not supportive of the Applicant’s claim that even if he were perceived by the Pakistan authorities to have SSP sympathies that there is no good reason to suggest that he is or will be at real risk of harm from the authorities upon his return to Pakistan that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 25 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 in which he just repeated his claim as before 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.

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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision and upon the Applicant’s refusal to give any further oral evidence or to provide any useful answers to questions raised of his claim by the Adjudicator despite being advised to do so during his appeal hearing, 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 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.                

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 4^th day of November 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