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

HCAL 2521/2019

[2025] HKCFI 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2521 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 5 February 2025. I shall deal with his application on the papers.

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, aged 46, is a national of Pakistan. He sneaked into Hong Kong on 1 July 2013 illegally and arrested by police for illegal remaining on the same day, and the applicant later lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor because of financial debt owed to him.

5.  According to the applicant, he had borrowed altogether 1 million Pakistan currency from his friend. He was unable to repay his debt. His creditor had sent people to look for him. They threatened to kill him if he did not repay his debt. He came to Hong Kong in April 2013.

6.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 26 September 2017 (“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 low intensity and frequency of ill-treatment from the creditor in the past is indicative of a small future risk of harm and on the applicant’s own account, he had never inflicted ill-treatment or physical harm against the applicant [17-20]; considering the country of origin information, state protection was available and there was no indication that the applicant would not be afforded the requisite level of protection from the Pakistani Government [21-32]; and internal relocation alternatives were available and reasonable [33-38].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 13 August 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that the applicant exaggerated some of his claims, especially in relation to the level of harm he fears from his creditor, though it was mindful that it is quite possible for the claim to stand [56]. The Board also found the applicant to be a reluctant witness and rejected the argument that he could not get protection from authorities since he never sought help and his view was purely speculation [57-61]. The Board also rejected the applicant’s reluctance to relocate since the applicant could not provide a valid reason [63]. In any event, the Board found that the threat from the creditor was localised and he had not acted in any official capacity or official sanction of the government. [64] The Board was satisfied that it was a viable option for the applicant to internally relocate [65]. 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 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge 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.

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.  There is no valid ground from the applicant to challenge the Board’s Decision.

17.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.