Shah Sheraz Ahmed v. Torture Claims Appeal Board

HCAL 1162/2022

[2026] HKCFI 5813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1162 OF 2022

BETWEEN

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 the Applicant being absent 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 43-year-old national of Pakistan who entered Hong Kong illegally on 11 July 2015 and more than 1 month latter on 19 August 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his maternal uncle and son over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohallah Abdul Hazro, Tehsil & District, Attock, Punjab, Pakistan. After leaving school he assisted in his father’s book store in his home village where his father owned some land in his mother’s name jointly with his maternal uncle.

3.In 2004/2005 his uncle proposed to purchase his father’s half share of the land which his father agreed, but after his mother had signed the transfer of the land, his uncle refused to pay over the agreed price which subsequently led to numerous quarrels between the 2 families, during which his uncle made death threats against the Applicant’s family.

4.One day his brother was killed by some unknown men in a restaurant, of which the Applicant’s family suspected that his uncle had hired someone to kill his brother, and therefore reported the crime to the police that his uncle and son were arrested but subsequently released after several days due to lack of evidence, but for which his uncle swore to take revenge against the Applicant’s family by threatening to kill the Applicant.

5.As a result the Applicant became fearful for his life, and after 2 incidents when he was attacked by his uncle and son and their men, he fled to Karachi and then Lahore to hide from his uncle and son, and on 8 July 2015 he 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 26 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 29 January 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 assessed the level of risk of harm from his uncle and son 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 his uncle to seriously harm or kill him after having already acquired the land without paying for it, that in any event it was a private land 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 204 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 or Islamabad where it would be difficult if not impossible for his uncle to locate him.

8.On 12 February 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 17 May 2021 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 23 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies discrepancies and exaggerations in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from his uncle and son over some land dispute in his home village that caused him to leave his country to come to Hong Kong to seek protection, that that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than one month later that it was satisfied that the Applicant had invented or fabricated his story and concluded that it is not established that the Applicant will face any risk of being harmed or ill-treated as claimed upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.On 28 October 2022 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 did he subsequent attend the scheduled hearing of his application without any explanation. 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 the Director in his decision 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, a decision also agreed and confirmed by the Board, 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.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.In the premises, 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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 20^th day of October 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