Muhammad Imran v. Torture Claims Appeal Board
|
HCAL 1924/2020 [2025] HKCFI 5262 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1924 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 50-year-old national of Pakistan who arrived in Hong Kong on 5 July 2005 on a false passport with a different identity and subsequently did not depart and overstayed until almost 3 years later when he was arrested by police om 11 June 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim but later absconded on his bail and disappeared again until 26 March 2014 when 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 Jamaite-Islami (“JI”) over their dispute with his family in his home village. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Mirpur, Azad Kashmir, Pakistan. After leaving school he ran his own business in his home district, and supported the political party Jammu Kashmir Peoples Party (“JKPP”) after being dissatisfied with JI which he initially joined by attending their training camp but subsequently left for JKPP. 3.In about 2003 one of his brothers was invited by the local JI supporters to join and attended their training camp, but later when his brother also decided to leave the JI camp, some JI supporters came to demand that he returned to their camp, and when the Applicant and family declined to send his brother back, those JI supporters became furious and attacked the Applicant by punching and kicking him, and before they left they threatened that if his brother failed to return to the JI camp, next time they would come and kill the Applicant. 4.As a result the Applicant’s family sent his brother away to hide in Karachi, whereupon the Applicant continued to receive threats from those JI supporters, and one day in January 2005 he was grabbed by those JI supporters to some remote area where they demanded that he should take his brother’s place to join JI, and when he refused, they proceeded to beat and torture him for almost 2 weeks before he eventually managed to make his escape and fled to hide in his cousin’s place in Muree before subsequently returning to his home village. 5.However, as the threats from those local JI supporters soon resumed, the Applicant felt it was no longer safe to remain in Pakistan, and so in April 2005 he departed for China, and from there he later travelled to Hong Kong on his faked passport and subsequently overstayed, and upon his arrest by the police some 3 years later in June 2008 he then raised his torture claim but subsequently absconded on his bail until 2014 when he then sought non-refoulement protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 18 February 2019 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”). 7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local JI supporters upon his return to Pakistan 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 nor is it accepted that they would still have any adverse interest in him after all these years since he left the country, 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 Islamabad where it would be difficult if not impossible for anyone to locate him. 8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any JI supporters the that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until years later of his arrest but again absconded on his bail and disappeared for more years, that even if his account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of those local JI supporters to seriously harm or kill him or to still have any adverse interest in him after all these years since he left the country in 2005, and that in any event it was a private dispute between those JI supporters and his family only 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 anyone that his claim for non-refoulement protection failed on all applicable grounds. 10.On 25 September 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 in his supporting affirmation of the same date in which he just repeated his claim as before and stated that he is not satisfied with the decision 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. 11.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. 12.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. 13.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 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 14.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. 15.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 6th 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 |
Further hearings and rulings under HCAL 1924/2020