IMRAN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1302/2020

[2025] HKCFI 4345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1302 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for leave to apply for judicial review of the Decision dated 26 October 2018, which is the Director’s Decision and was superseded by the Decision dated 3 April 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as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 and the Director of Immigration is the interested party and the Decision under the application is the Board’s Decision.

The applicant

4.  The applicant is a national of Pakistan.  He is an illegal immigrant, having admitted that he entered Hong Kong illegally on 13 July 2007 and was arrested by police.  He was referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the members of Mutahida Qaumi Movement (“the MQM”) due to political conflict, as he was a supporter of its rival party, the People’s Party.

5.  According to the applicant, because of the difference in political ideologies of the parties, he was assaulted by the MQM members.  He fell unconsciously under a bridge.  He had to live in his cousin’s house in Karachi.  He left Karachi for China in 2007.

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/2020/HCAL001302_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

7.  As the applicant had raised a torture claim, which the Director refused, the Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 dated 26 October 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

9.  The applicant appealed the Director’s Decision to the Board.  On 19 December 2019, the Board conducted an oral hearing for his appeal.  He had given oral evidence and answered the Board’s questions.

10.  Having considered the evidence, the Board dismissed his appeal and confirmed the Director’s Decision as it found that:

(1)  it accepted that he was set up by the MQM members and he fell unconsciously under a bridge; [83]

(2)  it did not accept that he is of any adverse interest to the MQM people now; [84]

(3)  there is not any real risk of harm at the hands of the MQM if he returns to Pakistan; [87]

(4)  it accepted that he is a born Christian, but there is no real risk that will prevent him from his religious worship; [89]

(5)  police protection will be available to  him; [102] and

(6)  internal relocation is viable. [103]

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

11.  The applicant has filed Form 86 dated 24 June 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 ground 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 has raised no valid ground to challenge the Board’s findings.  I do not find any error in law or procedural impropriety in the Board’s Decision or the Board’s finding of the facts Wednesbury unreasonable.

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

DISPOSITION

18.  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