RAJA AKAASH ILYAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1176/2025

[2025] HKCFI 6219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1176 of 2025

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 oral submissions by the Applicant 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 13 May 2025 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.

The applicant

3.  The applicant is a national of Pakistan. He is an illegal immigrant, having entered Hong Kong illegally from China on 31 October 2023. He was arrested. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by Mr Chaudhry Rukhsar and his men of the Pakistan Muslim League (N) (“PML-N”) because he belonged to the Pakistan Tehreek-e-Insaf (“PTI”) and he refused to leave PTI. In Pakistan, he was attacked by his enemies with wooden sticks, causing him a head injury.

4.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001176_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of Notice of Decision dated 13 March 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 20 May 2024, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

8.  Having considered the evidence, the Board made the findings below.

(1)  The Board accepted the applicant’s evidence that he was threatened with harm by Mr Chaudhry and given an ultimatum to cease supporting the PTI, which he repeatedly refused and in fear of being harmed in February 2023, he left his family and went to stay with his aunt in Islamabad. The Board further accepted that he was attacked by his enemies in Pakistan. [52]

(2)  On the evidence, the applicant’s case did not meet the definition of torture under section 37U(1) of the Ordinance. The state had taken reasonable measures to protect its citizens. There was no evidence that the state would not render protection to the applicant. There was no evidence that the state was involved. [59]-[66]

(3)  Therefore, the applicant’s claim on torture risk was not established. [67]

(4)  The applicant’s evidence in support of his claim on BOR 3 was established. But the Board found that the risk was localized, and the applicant might relocate to live in other places in Pakistan. Therefore, his claim on BOR 3 risk was not established. [68]-[83]

(5)  The applicant’s claim on Persecution risk was not established for the same reason that internal relocation was viable. [84]-[89]

(6)  BOR 2 risk was simply not established. [90]-[91]

9.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

10.  The applicant has filed Form 86 dated 21 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  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.”

15.  The applicant has raised no valid ground to challenge the Board’s findings. The Court sees no reason to interfere with the Board’s findings.

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

DISPOSITION

17.  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