KHAN SAIFULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2621/2024

[2025] HKCFI 3971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2621 of 2024

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 present 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 13 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing.  He appeared before the Court on 23 July 2025.

The applicant                                                                                                         

3.  The applicant is a national of Afghanistan. He is an illegal immigrant, having sneaked into Hong Kong from mainland China on 23 June 2024. He surrendered to the Immigration Department on 23 July 2024 and lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Muheeb Qari (“MQ”) because he had killed his son in an accident where he was operating a tractor, which hit MQ’s son on a bicycle. He claimed that he had received a death threat letter and he assumed that it came from MQ.

4.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002621_2024_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 3 December 2024, the Board conducted an oral hearing for his appeal by way of a video conference with an interpreter. The applicant had given oral evidence and answered questions from the Board.

8.  Having considered the evidence, the Board made the following findings.

(1)   The Board did not accept his evidence that MQ was affiliated with the Taliban regime. His evidence was hearsay from either his mother, his uncle or his neighbor, which it found unreliable.

(2)   There is nothing to suggest that he would be unsafe if he were returned to his country and remained outside of his home area.

(3)   He was never harmed in the past.

(4)   He never sought the help of the authorities in the past. There was no reason why the police would not help him if he were threatened with death, as claimed.

See paragraph 41 of the Board’s Decision.

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

9.  The applicant has filed Form 86 dated 24 December 2024 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

11.  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).

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think the Board was wrong in its decisions.

13.  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.”

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

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

DISPOSITION

16.  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