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

HCAL 3085/2019

[2025] HKCFI 2383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3085 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The Director of Immigration (“the Director”) has made the following decisions:

(1) Notice of Decision dated 13 May 2015 (the Director’s 1^st Decision”), which dealt with the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as shown below.

(2) Notice of Further Decision dated 9 June 2017 (“the Director’s 2^nd Decision”), which dealt with the applicant’s claim on BOR 2 risk.

2.  The Torture Claims Appeal Board (“the Board”) has made the following decisions:

(1) Decision dated 12 May 2017, which dealt with the appeal against the Director’s 1^st Decision; and

(2) Decision dated 27 September 2019, which dealt with the appeal against the Director’s 2^nd Decision.

3.  The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision.

4.  As the facts of the Board’s 2^nd Decision are the same as the Board’s 1^st Decision, I shall take into account of the Board’s 1^st Decision as well in this application.

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

The applicant

6.  The applicant, aged 42, is a national of Pakistan. On 27 October 2009, he sneaked into Hong Kong and was arrested by police on the same day. 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 members of the Pakistan People’s Party (“PPP”) and the Muttahida Qaumi Movement (“MQM”) because he was a supporter of the Pakistan Muslim League Q (“PMLQ”).

8.  According to the applicant, he was attacked on 3 separate occasions from both PPP and MQM in or around December 2007. They hit him with fists and kicks. They also fired guns at the air and burnt down his office. Details of his claim are set out at paragraphs 5-30 of the Notice of Decision dated 13 May 2015 by the Director (the “Director’s First 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: the level of risk of harm was assessed to be low, the low intensity and frequency of past-ill treatment is indicative of a small future risk of harm, and there was no factual evidence supporting the applicant’s claim [36-39]; reasonable state protection was available [40-43]; and internal relocation alternatives were available and reasonable [44].

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 there was no reply to provide additional materials or facts particularly regarding BOR 2 risk [3]; and that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights [6]. Having carefully reviewed the applicant’s claim, the Director found that the applicant has failed to establish BOR 2 risk [7].

The Board’s Decisions

12.  The applicant appealed the Director’s 1^st Decision to the Board. On 15 August 2016, the Board conducted an oral hearing for his appeal, and the applicant told the Board that he did not want to say anything [17-20].

13.  Having considered the evidence, the Board found that the applicant’s evidence could not be relied on under the applicable grounds [19, 25, 28 & 31]. In any event, state protection was available for the applicant [23-25] and internal relocation was not unduly harsh [32-35]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds except BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s 1^st Decision. The applicant did not apply for judicial review of the Board’s 1^st Decision.

14.  The applicant then appealed the Director’s 2^nd Decision to the Board. The Board did not conduct an oral hearing.

15.  Having considered the evidence, the Board found that the applicant did not supply any additional information as required for the consideration of BOR 2 risk [12-13]. In conclusion, the Board held that the applicant’s claim failed under BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s Further Decision.

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

16.  The applicant has filed Form 86 on 18 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision. The applicant’s grounds can be summarized as follows: the Board was in breach of procedural fairness such as being unreasonable or irrational in the public law sense. No particulars or details were provided in support of the grounds.

17.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s 2^nd Decision and deposed that the Board did not hold an oral hearing and significantly relied on the source of news which are not officially recognized or was simply hearsay.

DISCUSSION

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

19.  As to the grounds stated in paragraph 17, the Board was entitled to determine his appeal without a hearing, particularly where it had already held a hearing for his first appeal against the Director’s 1^st Decision. The Board was also entitled to rely on the country of origin information (“COI”). There is no evidence from the applicant against the COI.

20.  In any event, the applicant’s intended application is bound to fail as the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA , 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

21.  In the circumstances, 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

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