MUHAMMAD ISHTIAQ AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1103/2020

[2025] HKCFI 4226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1103 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

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. He came to Hong Kong as a visitor since 27 October 1999 and from time to time. He overstayed since 8 February 2000 and was arrested by police. He was convicted of the offences of taking up employment without authority, using the identity card of another person and using a false instrument and was sentenced to 4 months’ imprisonment.

5.  He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Muhammad Hussain, a politician and the administrator of the Pakistan Muslim League Nawza, who intended to buy a piece of land belonging to his family Upon his father’s advice, he came to Hong Kong in 1999.

6.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001103_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

7.  Since the Director had rejected his torture claim previously, 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 21 November 2019, the Board conducted an oral hearing for his appeal. Both parties were legally represented before the Board. The applicant had given oral evidence and answered questions from his lawyer, the Director’s lawyer and the adjudicator.

10.  Having considered the evidence, the Board found:

(1)  there were inconsistences in his evidence and he was evidence was unpersuasive; [110]-[124]

(2)  the applicant did not seek protection until after his arrest 8 years after his arrival in Hong Kong adversely affect the credibility of his evidence; [125]

(3)  those factors above, coupled with lack of supporting documentation, led the Board to find that his claim was not substantiated; [126] and

(4)  the Board rejected his evidence on the core facts of his claim; [127].

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

11.  The applicant has filed Form 86 dated 4 June 2020 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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.

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

DISPOSITION

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

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