SADAQAT MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1128/2020

[2025] HKCFI 4000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.1128 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.

Observation for the Applicant:

THE APPLICATION                                                                        

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 May 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.

The applicant                                                                                                                    

4.  The applicant is a national of Pakistan. He is an illegal immigrant, having admitted that he entered Hong Kong illegally by boat from China on 26 May 2015. The police arrested him and handed him 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 his uncle, Iqbal, because of a family land dispute.

5.  According to the applicant, Iqbal and his sons intended to dispossess him of the land inherited from his mother. In so doing, they had assaulted him and threatened him with death, though without physical injury on him.

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/HCAL001128_2020_files/the_Board's_Decision.pdf.

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 Notice of Decision dated 5 October 2018 (“the

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 20 April 2020, the Board conducted an oral hearing for his appeal. He had given oral evidence before the Board.

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

(1)   the applicant had not taken the first opportunity to raise non-refoulement claim after he arrived in Hong Kong, which is detrimental to his credibility; [25]

(2)   although it accepted his allegation that there was a family land dispute and his uncle and cousins had harassed and threatened him, the Board did not accept that Iqbal or his sons would harm or kill him; that he would face risk throughout the country; that he experienced physical suffering of the required severity; and that state protection would not be available to him; [39]

(3)   there was no evidence of torture as defined in section 37U of the Ordinance; [75]and

(4)   Internal relocation is viable, such as Karachi or Hyderabad. [82]

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

11.  The applicant has filed Form 86 dated 8 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. The Court does not find any error in law or procedural impropriety in the hearing and the Board’s decisions are not 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