Usman Nawaz v. Torture Claims Appeal Board

HCAL 1888/2023

[2026] HKCFI 3855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1888 OF 2023

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:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 6 September 2020 and was arrested by police on 13 September 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 his former girlfriend’s family who disapproved of their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujar Khan, Pakistan. After leaving school he worked as a manual labourer in his home district to make his living.

3.In late 2017 he met and started dating his girlfriend Sonia from a wealthy family, but later when his family made marriage proposal to her family, her parents rejected the proposal as they regarded his family as poor and not fit to marry their daughter.

4.Yet the Applicant and Sonia were determined to get married and secretly planned to elope together to another town for their marriage, but one day in April 2019 when they secretly met in a restaurant to discuss their plan, they were seen by her brother who together with his friends confronted them and beat the Applicant severely, and before he took Sonia away, her brother warned the Applicant that next time if he saw them together he would kill him.

5.As a result the Applicant became fearful for his life and fled to Lahore, but later when he heard that Sonia’s brother and his people were looking for him everywhere, the Applicant felt that it was no longer safe to remain in Pakistan, and so in early September 2019 he departed 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 27 May 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 29 September 2021 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his former girlfriend Sonia’s brother or family upon his return to Pakistan as low 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 other than to deter him from seeing Sonia, that in any event it was a private and personal dispute between them 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 238 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 where it would be difficult if not impossible for anyone to locate him.

8.On 8 October 2021 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 14 February 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 October 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from the brother and family of his former girlfriend Sonia which disapproved of their relationship that caused him to leave his country to come to Hong Kong to seek protection, but found no reliable evidence of any real intention of them to seriously harm or kill him other than to stop or deter him from seeing Sonia, and that in any event it was a private and personal dispute between him and her 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 19 October 2023 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, and in his supporting affirmation of the same date he just put forth some bare and vague assertions that the Board did not truly consider his claim and just dismissed it without proper consideration but without any relevant or necessary details or particulars or elaboration as to how it did so. 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 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 parts 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.

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.Moreover, the Applicant has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

15.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 14^th day of July 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