HASSAN TUFAIL UL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 200/2025

[2025] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 200 OF 2025

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BETWEEN

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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 2 December 2024 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. He appeared before the Court on 14 May 2025.

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 28 June 2024, the applicant surrendered to the Immigration Department claiming that he entered Hong Kong illegally on 15 June 2024. In due course, he lodged a non-refoulement claim in Hong Kong.

5.  The applicant’s claim was based on his fear of being harmed or killed by his maternal uncle because of a land dispute.

6.  According to the applicant, there was a dispute between his mother and his maternal uncle over a piece of land adjacent with each other. There was a meeting between his mother and the wife of his maternal uncle where he and his mother was attacked by his maternal uncle and his family. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 September 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b) 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”);

(c) 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

(d) 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”).

8.  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 claimed level of risk of being harmed or killed was assessed to be low, that there was no objective evidence that showed that the uncle had exhibited intense and sustained effort to harm or kill him; that the problem was merely a private dispute [12-14]; that state protection was available [15-19]; and that internal relocation alternatives were available and reasonable [20-21].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 28 October 2024, the Board conducted an oral hearing for his appeal, during which he confirmed the truth and correctness of all the evidence and no additional statements or documents were submitted to support his claim [38-42].

10.  Having considered the evidence, the Board did not accept that there was any substantial risk or any substantial basis of fear that the applicant would be subjected to any serious harm or ill-treatment by the uncle [70-71]. In any event, having considered the Country of Origin Information, it found that state protection was available [72-81], and internal relocation was a viable option [82-89]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 15 January 2025 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any ground in support of his application.

12.  In his affirmation in support of his application, the applicant has raised the grounds that the Director’s Decision was wrong and he had rejected his claim without proper inquiry and fully understanding of his situation.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, he said that the Board was wrong because it did not believe his evidence.

15.  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.”

16.  The applicant has raised no valid ground to challenge the Board’s findings, as the grounds under paragraph 12 are bare assertions without any evidence in support.

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

DISPOSITION

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