Butt Umar v. Torture Claims Appeal Board

HCAL 1876/2020

[2026] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1876 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

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 40-year-old national of Pakistan who entered Hong Kong illegally on 2 January 2019 and surrendered to the Immigration Department on 17 January 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 the Shimla family in his home district over 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 Sialkot City, Punjab, Pakistan before moving with his family to Jalal Pur Jata, District Gujrat where he worked as a vehicle mechanic to make his living.

3.In March 2000 he and his family participated in the local annual kite flying festival during which they won the kite flying competition by defeating the last year winner the Shimla family who however became furious at them which led to some heated quarrels between the 2 families.

4.Several days later some members of the Shimla family came to the Applicant’s home to shout abuses at his parents, and before they left one of them fired a gun shot at the house to threaten them.

5.A few days thereafter the Applicant’s elder brother Shedzad and his friends took revenge by returning gun shots at the house of the Shimla family which however accidentally killed one of their members.

6.For the next several years the 2 families became embroiled in revenge attacks against each other resulting in numerous casualties on both sides including the Applicant’s elder brother Shedzad, and for which the Applicant’s family brought legal actions against the Shimla family.

7.Eventually in 2017 the Shimla family offered to settle the court case with the Applicant’s parents, but when they refused to give their guarantee never to harm the Applicant in future, his parents sent him away to Lahore to take shelter in his sister’s place, and on 29 December 2018 the Applicant departed Pakistan 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 16 May 2019 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 5 July 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”).

9.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 have any real chance of facing any real and personal risk form the Shimla family upon his return to Pakistan 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 Shimla family to seriously harm or kill him, 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 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 where it would be difficult if not impossible for the Shimla family to locate him.

10.On 17 July 2019 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 26 May 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.

11.In its decision[1] the Board accepted the Applicant’s claim of threats from the Shimla family over their dispute with his family but found no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private dispute between their 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.    

12.On 21 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 in which he just stated that he is not satisfied with the decision as his life is still in danger in his home country 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.

13.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.  

14.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.

15.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.

16.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 January 2026

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