Akhtar Hamid Ali v. Torture Claims Appeal Board

HCAL 2063/2020

[2025] HKCFI 5404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2063 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;

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 29-year-old national of Pakistan who entered Hong Kong illegally on 20 July 2019 and surrendered to the Immigration Department on 22 July 2019 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 fellow villagers or local gangsters in his home village due to their disputes with his family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalalpur Jattan City, District Gujrat, Punjab, Pakistan. After leaving school he assisted his family in their farming in in his home village where some villagers had some personal disputes with his family before the Applicant was born.

3.Back in 1989 before the Applicant was born, a cousin of his father had a dispute with a member of his neighbor the Asghar Family who were known to be local gangsters over some pigeon competition that led to a fight between the 2 families with knives that resulted in the death of a member of the Applicant’s family and numerous injuries on both sides and which had since caused ongoing animosities and conflicts between the 2 families over the years.

4.One day in March 2019 the Applicant was dragged into the conflicts when he was confronted by some members of the Asghar Family on the street who then made threats against him, but he managed to flee from the scene and ran home.

5.However, several days later the Applicant was again confronted by several members of the Asghar Family who fired several shots at him with their pistols from a distance but missed, and before they left they swore to kill him next time when they saw him.

6.As a result, the Applicant became fearful for his life, and so on 27 June 2019 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 November 2019 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 6 January 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”).

8.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 he will face any real and personal risk from his neighbor the Asghar Family 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, that in any event it was a private personal dispute between his family and the Asghar 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 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Hyderabad where it would be difficult if not impossible for anyone to locate him.

9.On 15 January 2020, 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 it on paper based on the materials and information provided by the Applicant earlier to the Director and available ibn the hearing bundle before the Board. On 29 September 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1], the Board accepted the Applicant’s claim of threats from his neighbors the Asghar Family known to be some local gangsters due to the long history of disputes between the 2 families in his home village but found no reliable evidence of any real intention of those members or gangsters of the Asghar family to seriously harm or kill him, and that in any event it was a private dispute between the 2 families 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.

11.On 15 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge summarized as follows:

(1) That the Board failed to conduct any oral hearing to hear his representation and submissions for his appeal before rejecting his claim and appeal which is an error in law;

(2) That it was procedurally unfair not to provide legal and language assistance to the Applicant for his appeal before the Board;

(3) That the Adjudicator was biased against the Applicant and just made his decision based on assumptions and challenged his credibility without any proper basis.

12.For the Applicant’s complaint under Ground (1) that the Board did not hold any oral hearing for his appeal, the general principles on whether to hold an oral hearing have been well established in that there is no absolute right to one as such, and that the ultimate question is one of fairness: see ST v Betty Kwan [2014] 4 HKLRD 277, and as clearly explained by the Board in its decision that it accepted the factual basis of the Applicant’s claims without any reservation (see [12] of the Board’s decision), and that it rejected the Applicant’s claim upon correctly finding on the factual basis of even his own case that it was a private dispute without any official involvement that any risk arising therefrom will be minimized or negated by the availability of both sate protection and internal relocation alternatives to the Applicant upon his return to Pakistan that this ground is in my view simply not reasonably arguable for his intended challenge.

13.As for his complaint under Ground (2) of not being provided with legal and language, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for non-refoulement protection must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director and with the assistance of an interpreter, and as noted above that the Board accepted the factual basis of his claim without reservation in its determination. As such, and in the absence of any evidence from the Applicant to suggest that his claim had indeed been wrongly interpreted or understood by the Board, I do not find this ground reasonably arguable for his intended challenge.

15.As for Ground (3) of the Applicant, these are just some bare and vague assertions without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator was biased against him when in fact all the factual bases of his claim had been accepted by the Board without reservation. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his affirmation or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge either.

16.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.

17.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.

18.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.

19.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 11^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