Sohail v. Torture Claims Appeal Board

HCAL 1146/2022

[2026] HKCFI 5889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1146 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 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 52-year-old national of Pakistan who entered Hong Kong illegally on 13 April 2018 and surrendered to the Immigration Department some 2 months later on 27 June 2018 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 paternal uncle 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 Kotli Loharan, Kull Sialkot, Pakistan where he inherited some farmland from his father but which his paternal uncle had raised issue about the title and had forcibly occupied some part of it, and when the Applicant objected to it and suggested that the matter be determined by the court, his uncle became furious and together with his sons beat him with wooden sticks and threatened to kill him should he dare to take the matter to the court.

3.In 2017, while he was working in Karachi, the Applicant heard that his uncle had again sold part of his land and pocketed the money, and when he later returned to his home village to confront his uncle who again threatened to kill him, and shortly thereafter his uncle’s sons came to the Applicant’s home and beat him with wooden sticks until they were restrained by other villagers.

4.After another attack by his uncle and sons that he was stabbed in the thigh with a knife, the Applicant became fearful for his life, and so on 10 April 2018 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 3 December 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 28 December 2018, 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”).

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 his uncle and sons 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 other than to deter him from raising any further issue over the farmland, that in any event it was a private land dispute between him and his uncle within their 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 208 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 Islamabad or Faisalabad where it would be difficult if not impossible for his uncle and sons to locate him.

7.On 10 January 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 27 May 2022 with his lawyer from DLS before the Board during which he declined to give any further oral evidence or to answer any questions raised of his claim by the Adjudicator for the Board despite being advised by both his lawyer and the Adjudicator to explain and clarify various issues raised by the Adjudicator of his claim based on the materials and information provided by him earlier to the Director and available in the hearing bundle before the Board. On 6 September 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s claim of fear of harm from his paternal uncle over some land dispute in his home village that caused him to leave his country to come to Hong Kong to seek protection as provided in the materials and information earlier provided by him to the Director but which he declined to clarify or explain at the hearing before the Board despite being advised to do so, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 2 months later, and that in any event even if his account of events prior to his departure of Pakistan were true that it was a private land dispute between him and his uncle only without any official involvement that reasonable internal relocation alternatives are available to him to move safely to other parts of the country away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

9.On 25 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 in which he just asserted 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.

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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision without any oral evidence or answers to questions raised of his claim when the Applicant declined to do so at his hearing before the Board, 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.

12.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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, 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.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.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 22^nd 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