ALI JAMSHAID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3143/2019

[2025] HKCFI 2622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3143 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 23 May 2025. I shall deal with his application of the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Pakistan. On 4 January 2010, he was arrested by police and claimed that he entered Hong Kong illegally on 11 December 2009.

5.  The applicant lodged his torture claim on 6 January 2010, which was refused by the Director on 19 July 2010. In due course, the applicant lodged his non-refoulement claim.

6.  The applicant’s claim was based on his fear of being harmed or killed by his uncle and his 4 sons because the applicant’s father refused to transfer his land to them.

7.  According to the applicant, in or around June 2009, his uncle and 4 sons came and argued with him. The applicant sustained an injury on his right leg. When a report was made to police, the applicant claimed that the police said they could not do anything as the uncle was a member of the political party Pakistan Muslim League (Qasim) (“PMLQ”). After that incident, the uncle also went to the applicant’s family’s home to threaten his father, so the applicant fled to save his life. Details of his claim are set out at paragraph 11 of the Notice of Decision dated 31 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  As his torture claim had been rejected, the Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the low intensity and frequency of past-ill treatments from the uncle and his 4 sons were indicative of a low future risk and since the land was still under the name of the applicant’s father, the perceived harm was not as imminent and substantial as asserted [15-18]; state protection was available [19-20]; and internal relocation alternatives were available and reasonable [21-26].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 5 August 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant responded to the Board’s questions.

11.  Having considered the evidence, the Board considered the facts and on the totality of the evidence, did not accept that the applicant faced a real chance of harm of any type and held that the applicant’s claim failed under the applicable risks [23-54]. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any ground for his application in Form 86.

13.  In his affirmation in support of his application, the applicant exhibited the Board’s Decision and included a copy of his grounds. The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were wrongly reached and were not reasonable and fair, the Director failed to appreciate or give proper importance to the presence of state acquiescence, and that this was a clean case of unfair attitude shown by the Director. There were no particulars or details to the applicant’s bare assertions.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  The applicant has raised no valid ground to challenge the Board’s findings.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.