GHULAM ZIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 53/2017

[2026] HKCFI 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 53 of 2017

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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 February 2017 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”) dealing with the applicant’s BOR 2 risk, dismissing the appeal against the Director’s 2^nd  Decision as described below.

2.  The facts of the Board’s 2^nd Decision rely on the facts of the Board’s Decision dated 6 November 2015 (“the Board’s 1^st Decision”), which dealt with the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk, dismissing the Director’s Decision dated 28 August 2014 (“the Director’s 1^st Decision”).  The applicant did not apply for leave for judicial review of the Board’s 1^st Decision.  However, this Court will take into consideration of the Board’s 1^st Decision when making assessment of the Board’s 2^nd Decision.

3.  The applicant asked for a hearing.  However, he was absent at the hearing on 19 January 2026.  I shall deal with his application on the papers.

The applicant     

4.  The applicant is a national of Pakistan.  He is an illegal immigrant.  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 several political parties, namely, MQM, PPP and PML(N).

5.  Details of his claim are set out in the Board’s Decisions.  See hyperlink. 

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2017/HCAL000053_2017_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2017/HCAL000053_2017_files/2nd_Board's_Decision.pdf

The Director’s Decisions

6.  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”).

7.  By the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk because it was unsubstantiated.  By way of the Director’s 2^nd Decision, the Director dismiss his claim on BOR 2 risk for the same reason.

The Board’s Decisions

8.  The applicant appealed the Director’s 1^st Decision to the Board. On 5 March 2015, the Board conducted an oral hearing for his appeal.  He had attended the hearing.

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

(1)     His claim that he feared that he might be harmed by PML(N) who might accuse him of having abandoned the party was totally without merit.  [16]

(2)     There was no evidence that the state was involved.  [20]

(3)     State protection will be available if he returns to his country.  [25]

(4)     Internal relocation is viable.  [32]

(5)     On the basis of the findings above, his claim under the Torture risk, BOR 3 risk and Persecution risk failed.

10.  The applicant further appealed the Director’s 2^nd Decision to the Board. The Board, having considered its 1^st Decision, decided not to hold a hearing for his appeal.  Having considered the evidence and the materials before it, the Board, relying upon the same reasons in the Board’s 1^st Decision, found that there was no merit in his claim on BOR 2 risk.

11.  For the reasons above, the Board dismissed his appeals and affirmed the Director’s Decisions.

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

12.  The applicant has filed Form 86 dated 27 February 2017 for leave to apply for judicial review of the Board’s 2^nd Decision.

13.  In support of his application, the applicant repeated his facts and raised the following general grounds to challenge the Board’s 2^nd Decision.

(1)     Procedural impropriety – the Board failed to have sufficient research into country of origin information (“COI”); failed to call for psychological and psychiatric evaluation and reports; had applied incorrect standard of proof; the legal representative was not well prepared; he had not sufficient time to prepare for the appeal and he did not have interpreter to assist him; the Board failed to notify him by phone; the Board hearing was unfair because the Board did not make appropriate arrangement in relation to the hearing bundle; the Board relied on the source of news not officially recognized or it is simply hearsay, or outdated authorities; there was no hearing on BOR 2 risk.

(2)     Irrationality – the Board cheery-picked the COI; it also took into account out of date COI and its decisions are unreasonable; the Board did not consider state protection or state acquiescence; the Board considered irrelevant factors.

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 Decisions 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.  Those grounds under paragraph 13 are bare assertions without any evidence in support or they are simply not relevant to his case.  As such, they are not valid to challenge the Board’s findings[1]. There is no reason for this Court to interfere with the Board’s Decisions.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd 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