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HCAL 3341/2019
[2025] HKCFI 3632
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3341 of 2019
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Khan Muhammad Shehroz |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 followings:
(1) Decision dated 17 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below;
(2) The Notice of Decision dated 14 August 2018 (“the Director’s Decision”)
(3) The Non-refoulement claim form; and
(4) Record of screening interview.
2. The Director’s Decision has been superseded by the Board’s Decision. The Non-refoulement claim form and the record of screening interview are not amenable to judicial review. They fail in limine and are dismissed.
3. The applicant asked for a hearing. He appeared before the Court on 21 July 2025.
4. 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
5. The applicant is a national of Pakistan. He is an illegal immigrant as he sneaked into Hong Kong from China on 9 November 2015. He then surrendered to the Immigration Department on 11 November 2015. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his 2 cousins due to a land dispute. His cousins demanded his father to pass his land to them. His father refused whereupon they had a fight, in which the applicant took part. One of his cousin shot at him, but missed. Shortly afterwards, the applicant was assaulted on the street by his cousins. The applicant was afraid that his cousins might harm him, so he went to China, from where they came to Hong Kong.
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/2019/HCAL003341_2019_files/the_Board's_Decision.pdf.
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 dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that 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 16 September 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and the Board had raised some questions for his clarification.
10. Having considered the evidence, the Board found the facts below.
(1) The applicant’s treatment by his cousins did not meet the requirements under section 37U(1) of the Ordinance. [37]
(2) State protection will be available to him. [39]
(3) Internal relocation is viable if he returns to Pakistan. [47]-[51]
11. For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 8 November 2019 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, the applicant has raised the grounds, which I summarize below.
(1) He did not have legal assistance for his appeal.
(2) He did not have translation or interpretation assistance for his appeal. As a result, he did not under the Board’s Decision and he was not fully prepared for his appeal. This is unfair to him.
DISCUSSION
14. 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant first said that he wished to return to Pakistan as he considered his chance of staying in Hong Kong is slim. He later simply asked the Court to review the Board’s Decision for him.
16. 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.”
17. As to the grounds under paragraph 12, he was not entitled to free legal representation at all stages of the proceeding.[1] The applicant was also not entitled to free interpretation.[2] Before this Court, the applicant confirmed that he understood the Board’s Decision.
18. Those grounds under paragraph12 are not valid to challenge the Board’s findings.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 16th day of September 2025
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A)
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 16/9/2025
Khan Muhammad Shehroz
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13133/18/8/4038/P2571
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3030/18 (formerly RBCZ 11922/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[2] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
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