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

HCAL 3191/2019

[2025] HKCFI 2804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3191 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2019 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 2 May 2009, the applicant was arrested claiming that he entered Hong Kong illegally on 28 February 2009. 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 step-parental uncles due to a land dispute.

6.  According to the applicant, his father inherited a piece of land from his grandfather but his father’s step-brothers wanted a share of the land as they were farmers. One day in 2009, they verbally abused his father and pushed his father to the ground. The applicant then took a pistol and fired, but only hit his cousin’s leg. He ran away and came to Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 26 March 2018 by the Director (the “Director’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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the claimed level of risk of being harmed or killed was assessed to be low, the low intensity of past ill-treatment indicated that the applicant would not have a real chance of facing a substantial future risk of harm, and the enemies were only farmers and not influential [13-15]; state protection was available [16-20]; and internal relocation alternatives were available and reasonable [21-26].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 28 January 2019, the Board conducted an oral hearing for his appeal, during which the applicant said that his wife was currently pregnant and he did not wish to return because he was expecting a child [18-22].

10.  Having considered the evidence, the Board found that the applicant never sustained any injury or harm from his enemies and that by the applicant’s own evidence, it was clear that the enemies were willing and inclined to accept financial compensation instead of causing suffering or harm to the applicant in revenge [38-51]. In any event, having considered the Country of Origin Information, it found that state protection was available [48, 58], and internal relocation was a viable option [49, 65-69]. 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.

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

11.  The applicant filed the Form 86 on 28 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

12.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and included a copy of his grounds. The applicant included grounds which are summarized as follows: the Board conducted research using unreliable sources of information such as Wikipedia, and no investigation was done for collecting real data on Pakistan. No particulars or details were provided in support of his bare assertions.

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 said that he did not know whether the Board was wrong in its decisions. He invited this Court to review it.

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.