HUSSAIN SHABBIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 682/2025

[2025] HKCFI 2432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 682 OF 2025

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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 6 March 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 asked for a hearing. He appeared before the Court on 23 May 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 is a national of Pakistan. On 10 July 2024, the applicant was arrested by police and he claimed that he entered Hong Kong illegally on 6 July 2024. 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 his uncle because of a land dispute.

6.  According to the applicant, the applicant’s grandfather originally owned a piece of land in his home village but when he died in 2019, he did not give instructions as to the distribution of the land. The uncle began threats and learned that his uncle attacked his father. Around 2022, the applicant and father went back to the land, where the uncle’s sons held pistols and fired shots at the applicant and father. In around March 2023, the applicant and his father again went to the land, but was threatened and attacked by wooden sticks. The applicant’s father brought a pistol and fired shots, where the uncle reported the incident to police. Details of his claim are set out at paragraphs 6 to 9 of the Board’s Decision dated 6 March 2025 (the “Board’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 found that his claim was unsubstantiated and dismissed the applicant’s claim.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 11 February 2025, the Board conducted an oral hearing for his appeal, during which he confirmed the truth and correctness of all the evidence and no additional statements or documents were submitted to support his claim [10].

10.  Having considered the evidence, the Board found that the applicant’s lack of knowledge of the details of the land suggested that his claim over his interest in the land to be unreliable and incredible [61]. The Board further found that it was implausible and unreasonable for the uncle to target the applicant only but not the other siblings and other family members [62]. The Board found that it was unconceivable for the applicant to possess a low level of knowledge over the uncle, which was the source of his fear [67]. In any event, the Board found no evidence to suggest that state protection was not available to the applicant [104-105] and internal relocation was not unduly harsh [131-133]. In conclusion, the Board held that 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 17 March 2025 for leave to apply for judicial review of the Board’s Decision. He did not raise any reason in support of his application.

12.  In his affidavit in support of his application, he did not raise any specific ground against 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. Before me, the applicant simply asked me to review the Board’s Decision.

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.

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.