HUSSAIN EJAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1045/2020

[2025] HKCFI 4080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1045 of 2020

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 absent 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 10 September 2018, which is a mistake as the Decision of the Torture Claims Appeal Board is dated 22 May 2020 (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

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, the Director of Immigration is the interested party and the Board’s Decision is dated 22 May 2020.

The applicant

4.  The applicant is a national of Pakistan. On 21 December 2015, he entered Hong Kong illegally and was arrested by police. He was handed over to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Raja Mohamad Afzal, his sons and other supporters of the Pakistan Muslim League (Nawaz) (“PML (N)”), collectively called (“his enemies”) because he was a supporter of its rival political party Pakistan Tehreek-e-Insaf (“PTI”). He had joined the supporters of PTI to protest against PML(N) in Pakistan, and those occasions, he and his other friends were attacked by his enemies.

5.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001045_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision dated 30 August 2018, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.  The applicant appealed the Director’s Decision dated 30 August 2018 to the Board. On 2 October 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board found:

(1)  there were inconsistencies in his evidence; [56]-[57]

(2)  his evidence in relation to his political disputes with his enemies and his enemies’ attack on him was unreliable, therefore the centerpiece of his story had not been proven; [65]

(3)  since his evidence of the facts of his claim was rejected, his claim was without factual basis, there it was not necessary to consider state protection or internal relocation. [75]-[76]

10.  For the above reasons, the Board dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 29 May 2020 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

13.  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).

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

15.  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.”

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

DISPOSITION

17.  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