ABBAS YASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 842/2018

[2025] HKCFI 2513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 842 OF 2018

_____________

_____________

________________

J U D G M E N T

________________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 March 2018 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  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.

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, aged 45, is a national of Pakistan. On 7 May 2012, he sneaked into Hong Kong and was arrested by police on the same day. In due course, the applicant lodged and withdrew multiple non-refoulement claims. The current action is related to the applicant’s claim raised on 6 November 2015.

5.  The applicant’s claim was based on his fear of being harmed or killed by a creditor due to a default in loan payment and also by a leader of the Muttahida Qaumi Movement (“MQM”) named Aslam due to his refusal to perform an illicit act for him.

6.  According to the applicant, there were multiple incidents where he was threatened and assaulted by his creditor and his subordinates in around 2009. He sneaked into Hong Kong and was arrested by police on 2 November 2009, and in due course, lodged his non-refoulement claim. He withdrew his claim after his family had agreed on a loan amount for repayment. When he returned to his home country, his creditor wanted more and then kidnapped and detained the applicant. The applicant managed to escape, and sought a man called Aslam’s help. The applicant did not know Aslam’s exact post in the MQM, but Aslam asked the applicant to carry out a killing when the applicant asked for his help to resolving his dispute with his creditor. When the applicant did not respond to Aslam’s orders, Aslam accused the applicant of not keeping his promise and would kill him. The applicant then again sneaked into Hong Kong on 7 May 2012 and was arrested on the same day. In due course, he raised a torture claim in 2012. His claim was deemed withdrawn on 10 October 2013 because he failed to return the completed torture claim form within the time as prescribed by the immigration officer. Later in December 2013, the applicant was convicted of the offence of wounding with intent, leading to a sentence of 18 months’ imprisonment. He again raised a claim, but withdrew his claim on 18 September 2015. He raised his claim again on 6 November 2015, which is the current action. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 June 2016 by the Director (the “Director’s Decision”).

The Director’s Decisions

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 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 from both the creditor and Aslam, and doubt was cast on the applicant’s claim due to his behaviour of lodging and withdrawing claims repeatedly [14-19]; reasonable state protection was available [20]; and internal relocation alternatives were available and reasonable [21].

9.  By way of the Director’s Further Decision dated 8 August 2017, the Director assessed the applicant’s claim on all applicable grounds including 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 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, it was considered that the applicant failed to establish BOR 2 risk [6].

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board. On 22 December 2017, the Board conducted an oral hearing for his appeal. The Board found discrepancies in the applicant’s claim which was not fatal but did undermine the reliability of the applicant’s various allegations [30].

11.  Having considered the evidence, the Board found that the material allegations of the applicant were not supported by objective evidence [54] and that there was no, or no reliable evidence under all the applicable grounds [108, 109, 110, 111]. In any event, the Board was satisfied that there was state protection available for the applicant [45]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision and Director’s Further Decision.

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

12.  The applicant has filed Form 86 on 15 May 2018 for leave to apply for judicial review of the Board’s Decision but did not put forth any valid grounds.

13.  In the applicant’s affirmation in support of his application, the applicant deposed that his life was in danger but again did not put forth any valid grounds.

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.

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

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

DISPOSITION

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