Case Document

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HCAL 1944/2020

[2025] HKCFI 5263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1944 OF 2020

BETWEEN
	Ali Malik	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

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 47-year-old national of Pakistan who entered Hong Kong illegally sometime in November 2006 and was arrested on 24 July 2007 at the airport when he tried to depart on a faked passport, and was subsequently charged and convicted for the offences of making false representations to an immigration officer and was sentenced to prison for 12 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 some feudal landlord in his home village over a dispute with the Applicant’s family, and after it was rejected he then sough 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 Thatta Mehran, Machora, Kot Hidayat, Nankana Sahib, Punjab, Pakistan. After leaving school he worked in a shoe factory and then assisted his family in their farming in his home village, got married and raised a family with 2 children.

3.In 2005 his family had a dispute with the landlord of the farmland by the name of Haq for whom his family were hired to farm for years, and so his family changed to work for another landlord, and when Haq subsequently asked the Applicant’s family to return to work for him, the Applicant’s father refused whereupon Haq became furious and sent men to threaten the Applicant’s family by firing gun shots outside the Applicant’s home and beat the Applicant’s father and damaged the household furniture.

4.After the incident the Applicant’s family made a complaint to the police against Haq, but instead Haq made some false charges against the Applicant’s family that led to the arrest of the Applicant’s father and one of his brothers, and while they were subsequently released by the police due to lack of evidence against them, the Applicant became fearful for his safety in his home village and fled to Lahore, and on 19 November 2006 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest 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 29 August 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 5 October 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 landlord Haq and followers 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 Haq to seriously harm or kill him or his family, that in any event it was a private dispute between Haq and his 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 205 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 where it would be difficult if not impossible for anyone to locate him.

7.On 18 October 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 find necessary to hold any oral hearing and proceeded to deal with the appeal on paper based on the material and information provided earlier by the Applicant to the Director and available in the hearing bundle before the Board. On 10 September 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 fear of harm from the landlord Haq over his dispute with the Applicant’s family but found no reliable evidence of any real intention of Haq to seriously harm or kill him or to have any adverse interest in him, and that in any event it was a private dispute between Haq and the Applicant’s 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.

9.On 28 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 his supporting affirmation of the same date to which he just attached a copy of 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.

12.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.

13.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 6^th day of November 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 6 November 2025 Ali Malik Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 6 November 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13977/18/10/319/P2769 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3380/18 (T2S9) (Formerly RBCZ 2002799/14), QA T/C 154/08 (formerly as RBCZ 1377/07) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)