RIAZ DANYAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2889/2019

[2025] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2889 OF 2019

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BETWEEN

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J U D G M E N T

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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. He appeared before the Court on 12 March 2025.

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 34, is a national of Pakistan. In 12 May 2016, the applicant arrived in Hong Kong and surrendered to the Immigration Department after having landed illegally. In due course, he lodged a non-refoulement claim in Hong Kong.

5.  The applicant’s claim was based on his fear of being harmed or killed by enemies because of his refusal in joining the Pakistan Muslim League (N) (“PML(N)”) and his participation in Pakistan Muslim League (Q) (“PML(Q)”).

6.  According to the applicant, after joining and participating in the PML(Q), he received threats from the PML(N) before the 2013 election and was attacked in two incidents in 2016. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 November 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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 dismissed the applicant’s claim. The Director found that the absence or low intensity and frequency of past ill-treatment is indicative of a small future risk of harm and the assaults were intended for pressurizing you into joining PML(N) rather than seriously harming or killing the applicant [14-18]; that state protection was available [22-30]; and that internal relocation alternatives were available and reasonable [31-40].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 12 September 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found the absence of physical injury and the low intensity and frequency of past ill-treatment showed that there were no substantial grounds for believing that there would be a foreseeable and real risk of harm on the applicant, if he returns to Pakistan [61]. In any event, state protection was available to the applicant [63, 70, 80-81]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore 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 2 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and unfair as BOR 2 risk was not taken on board; there was a failure to consider state acquiescence; excessive reliance on country of origin information; it had not taken into account corruption in Pakistan; and the Director failed to attain a high standard of fairness required by the Wednesbury test.

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. Before me, the applicant said that he could not say that the Board was wrong. However, he asked the Court to review the Board’s Decision. The Court has also considered a letter written by his wife in order to assist his application. But this letter does not render assistance to the application.

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.  Those grounds under paragraph 12 are the applicant’s bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

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.