HASSAN RAZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3195/2019

[2025] HKCFI 3041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3195 of 2019

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 of the Board’s 2^nd Decision be refused.

Observations for the Applicant:

THE APPLICATION

1.  The Director of Immigration (“the Director”) had issued the following;

(1)   Notice of Decision dated 12 September 2014 (“the Director’s 1^st Decision”) dismissing the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk; and

(2)   Notice of Further Decision dated 11 January 2017 (“the Director’s 2^nd Decision”) dismissing the applicant’s claim on BOR 2 risk.

2.  The Torture Claims Appeal Board (“the Board”) had issued Decision dated 28 October 2016 (“the Board’s 1^st Decision”) dismissing the applicant’s appeal against the Director’s 1^st Decision; and also the Decision dated 4 October 2019 (“the Board’s 2^nd Decision”) dismissing the applicant’s 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.  He did not apply for leave for judicial review of the Board’s 1^st Decision.  However, since the Board’s 2^nd Decision relied upon the facts of the Board’s 1^st Decision, I shall take into consideration the Board’s 1^st Board as well in this application.

4.  The applicant asked for a hearing.  However, he was absent at the hearing on 9 June 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, aged 37, is a national of Pakistan.  He was arrested for illegally remaining in Hong Kong on 21 November 2009 and was then referred to the Immigration Department.  He lodged a non-refoulement claim on Torture risk, BOR 3 risk and Persecution risk for the reason that, if refouled, he will be harmed or killed by his uncle and a land developer Mr. Cheema on a land dispute.

7.  According to the applicant, he refused to sell a piece of land under his name to his uncle.  He was forced to sign a document by his uncle and Cheema.  He reported the matter to police, which declined to investigate into the matter.  Instead, the police officer assaulted the applicant with a chitter.  He then filed a claim with the court.  His enemies sent some people to kidnap him to a small house where they attacked him, trying to stab him on his stomach with a knife.  He escaped.  He decided to leave Pakistan for Hong Kong.

8.  Details of his claim are set out at paragraph 5 of 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 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.

11.  The Director invited the applicant to supply additional materials in support of BOR 2 claim, which was not dealt with the Director’s 1^st Decision.  The applicant did not provide the Director with any additional materials.  The Director assessed his evidence and found that he failed to establish any claim on BOR 2 risk.  By the Director’s 2^nd Decision, the Director dismissed his claim on BOR risk.

The Board’s Decisions

12.  The applicant appealed the Director’s 1^st Decision to the Board.  On 13 May 2015, the Board conducted an oral hearing for his appeal.  The applicant gave evidence and was cross-examined by the Board.

13.  Having considered the evidence, the Board found that the applicant was not an honest witness and he did not have a genuine and substantial risk of being subjected to ill-treatment if he returned to Pakistan. [35]-[45].  See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003195_2019_files/1st_Board's_Decision.pdf and https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003195_2019_files/2nd_Board's_Decision.pdf.

14.  By the Board’s 2^nd Decision, the Board also dismissed the applicant’s appeal against the Director’s 2^nd Decision.

15.  The Board therefore dismissed his appeals against the Director’s Decisions and confirmed the same.

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

16.  The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

17.  In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decisions. 

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 Decisions 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.

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 Board’s 2^nd 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