ASHRAF SALMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3083/2019

[2025] HKCFI 1678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3083 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 September 2019 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 9 April 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 40, is a national of Pakistan. He was arrested by police for being an illegal immigrant on 25 July 2009.

5.  The applicant lodged his torture claim on 28 July 2009, which was refused by the Director on 9 December 2011. In due course, the applicant lodged his non-refoulement claim.

6.  The applicant’s claim was based on his fear of being harmed or killed by members of the Muslim Student Federation (“MSF”) and by bomb blasting if he returns to Pakistan.

7.  According to the applicant, he had problems with the MSF including a fight incident where the applicant fought against people from the MSF. He was later threatened by the MSF. Details of his claim are set out at paragraph 12 of the Notice of Decision dated 15 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  Having rejected the applicant’s claim on torture, 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”).

9.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the low intensity and frequency of past-ill treatments from the MSF is indicative of a low future risk and insufficient evidence to suggest that MSF had a strong desire in pursuing the applicant, and no substantial grounds that the applicant will face a real and personal risk due to bomb blasting if he returns to his country [23-26]; state protection is available [27]; and internal relocation alternatives are available and reasonable [28].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 5 August 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant responded to the Board’s questions.

11.  Having considered the evidence, the Board considered the facts and doubted the applicant’s credibility [30-70]. The Board did not accept that the applicant faced a real chance of harm of any type [70] and held that the applicant’s claim failed under all applicable grounds other than Torture risk [35-38]. It therefore dismissed his 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 on 18 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

13.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but again did not put forth any 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.