AHMAD NISAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3161/2019

[2025] HKCFI 2431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3161 OF 2019

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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 following Decisions:

(1) The Director’s Decision dated 6 January 2015 (“the Director’s 1^st Decision”);

(2) The Director’s Further Decision dated 10 August 2017 (“the Director’s 2^nd Decision”);

(3) The Board’s Decision dated 13 March 2017 (“the Board’s 1^st Decision”) on Torture risk, BOR 3 risk and Persecution risk; and

(4) The Board’s Decision dated 18 October 2019 (“the Board’s 2^nd Decision”) on BOR 2 risk.

2.  The Director’s 1^st and 2^nd Decisions were superseded by the Board’s 1^st and 2^nd Decisions respectively. They are dismissed in limine.

3.  Time had expired for the application for leave for judicial review of the Board’s 1^st Decision. Since the Board relied on the facts of the Board’s 1^st Decision for its determination of the Director’s 2^nd Decision, this Court will take into consideration of the Board’s 1^st Decision as well. If the applicant is successful against the Board’s 1^st Decision, his application for leave for judicial review of the Board’s 2^nd Decision will succeed. In effect, the applicant’s application is for leave to apply for judicial review of the Board’s 2^nd Decision, which is within time.

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

5.  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

6.  The applicant is a national of Pakistan. The applicant was arrested by police on 21 January 2008 and according to the applicant, he last arrived in Hong Kong on 4 December 2007 illegally. In due course, the applicant lodged his non-refoulement claim.

7.  The applicant’s claim was based on his fear of being harmed or killed by the family members of Waqas who died after he was hit in a car accident caused by the applicant.

8.  According to the applicant, he did not have a driving license but one day in September 2007, he was driving and hit a cyclist whom was later identified as Waqas. The applicant did not surrender to police as he was afraid. The applicant claimed that Waqas’s uncle was influential and had close ties with gangsters. The applicant’s brother and the village chief went to Waqas’s family to apologise but the apology was not accepted. After Waqas passed away, according to the applicant’s brother, Waqas’s family and some gangsters were looking for the applicant. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 6 January 2015 by the Director’s 1^st Decision.

The Director’s Decisions

9.  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”).

10.  By way of the Director’s 1^st Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that there were no substantial reasons to believe that the applicant would be in danger of being harmed or killed by the family members of Waqas, and the absence of past ill-treatment in the past was indicative of a future risk of harm that was not likely to materialize [12-16]; that reasonable state protection was available [17]; and that internal relocation alternatives were available and reasonable [18].

11.  By way of the Director’s 2^nd Decision, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that: the applicant did not provide further additional materials or facts [3]; and having carefully reviewed the applicant’s claim, in the absence of additional information, it was considered that the applicant failed to establish BOR 2 risk [6].

The Board’s Decisions

12.  The applicant appealed the Director’s 2^nd Decision to the Board. On 30 November 2015, the Board conducted an oral hearing for his appeal. At the hearing, the applicant answered questions from the Board and both parties made submissions [6].

13.  Having considered the evidence, the Board found that the applicant’s evidence could not constitute a sufficient ground to support that he would be in danger of being subjected to torture, BOR 3, or persecution [43, 48, 51]. In any event, the Board found that state protection was available [52, 55] and internal relocation was available [56-57]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds besides BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s Decision.

14.  The applicant also appealed the Director’s 2^nd Decision to the Board. Having been the same Board that made the Board’s 1^st Decision, the Board determined the appeal without a hearing and found that the applicant failed to adduce any fresh information and the claim was based on the findings of fact in the Board’s 1^st Decision [16-17]. Furthermore, even if the applicant was charged with the offence of driving without a valid driving license or dangerous driving causing death, they would not attract the death penalty [18]. In any event, state protection was available to the applicant [21]. The Board therefore dismissed his appeal and confirmed the Director’s 2^nd Decision.

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

15.  The applicant filed the Form 86 on 24 October 2019 for leave to apply for judicial review of the Director’s 1^st Decision, Director’s 2^nd Decision; the Board’s 1^st and the Board’s 2^nd Decision. They have been dealt with in paragraph 3 of this Judgment.

16.  The applicant included grounds which are summarized as follows: the Director’s Decision failed to consider state acquiescence; there was an unfair attitude shown by the Director; and the Director failed to attain a high standard of fairness. Furthermore, the Board failed to make sufficient enquiries and failed to give sufficient chance to the applicant to arrange relevant evidence. These were bare assertions made by the applicant that were not supported by any details or particulars.

17.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s 2^nd Decision. He deposed that the decisions were unreasonable and the Director failed to consider all the matters raised in his claim, but did not elaborate further on the grounds referred to above.

DISCUSSION

18.  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).

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

20.  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.”

21.  The applicant has raised no valid ground to challenge the Board’s findings. Therefore, even if time is extended for him to apply for leave for judicial review of the Board’s 1^st Decision, his application fails and will be dismissed.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the 2^nd Board’s Decision. Accordingly, I dismiss his application.