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HCAL 447/2025
[2025] HKCFI 3131
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 447 of 2025
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BETWEEN
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Hussain Sarfraz |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 4 February 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 6 June 2025.
The applicant
3. The applicant is a national of Pakistan. On 8 August 2024, the applicant surrendered to the Immigration Department, claiming that he sneaked into Hong Kong on 6 August 2024. In due course, he lodged a non-refoulement claim in Hong Kong.
4. The applicant’s claim was based on his fear of being harmed or killed by his paternal uncle and cousin because of a land dispute.
5. According to the applicant, his grandfather distributed land to his uncle and father and both were entitled to half the land. However, the uncle later wanted to take over the applicant’s father’s land entirely, which led the applicant to fighting with the uncle and cousins. Another similar incident later and the applicant was threatened by his cousin that he would kill him and his father. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 October 2024 by the Director (the “Director’s Decision”).
The Director’s Decision
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 way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that there were no substantial grounds for believing that there would be any substantial risk of being harmed or killed by the applicant’s uncle or cousin; that the dispute is solely a private dispute with no indication of involvement with the government [11-14]; that state protection was available [15-18]; and that internal relocation alternatives were available and reasonable [19-20].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 7 January 2025, the Board conducted an oral hearing for his appeal, during which the applicant adopted all the information contained in the Hearing Bundle and confirmed that they were all true and correct [12].
9. Having considered the evidence, the Board found the applicant had not met the threshold required to substantiate all applicable grounds [60, 77, 83, 91]. In any event, having considered the Country of Origin Information, it found that state protection appeared available to the applicant [66-72], and internal relocation was a viable option and not unduly harsh [92-100]. 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. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000447_2025_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 17 February 2025 for leave to apply for judicial review of the Board’s Decision. The applicant included grounds which are, insofar as the Board’s Decision is concerned, summarized as follows:
(1) the Board’s Decision was not reasonable and not fair;
(2) there was a failure to consider state acquiescence;
(3) excessive reliance on country of origin information without taking into consideration his personal background;
(4) the Board did not accept his explanations and unreasonably required him to respond to questions; and
(5) the Board’s Decision is irrational.
11. In his affirmation in support of his application, the applicant did not raised 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. Before me, the applicant said that he had been detained for more than 6 months and asked this Court to review the Board’s Decision.
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. Those grounds under paragraph 10 are general assertions or his personal views without any evidence in support. They are not valid to challenge the Board’s Decision.
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.
Dated the 20th day of August 2025
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 20/8/2025
Hussain Sarfraz
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 24916
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2369/24 (formerly as RBCZ 5001932/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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