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

HCAL 3086/2019

[2025] HKCFI 2378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3086 OF 2019

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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 4 October 2019 of the Torture Claims Appeal Board (“the Board’s Second Decision”), dismissing the appeal against the Director’s Further Decision on BOR 2 risk.

2.  The Board had also dismissed the applicant’s appeal against the Director’s Decision on Torture risk, BOR 3 risk and Persecution risk by way of the Board’s Decision dated 27 April 2017 (“the Board’s First Decision”), which the applicant did not apply for leave for judicial review. However, since the facts of BOR 2 risks are the same for the other applicable risks, I shall take into consideration the Board’s First Decision as well.

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

4.  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

5.  The applicant, aged 42, is a national of Pakistan. On 20 May 2014, the applicant sought entry to Hong Kong from Shenzhen and was refused landing. In due course, the applicant lodged a non-refoulement claim.

6.  The applicant’s claim is based on his fear of being harmed or killed by a group under the Pakistan Muslim League (N Group) (“PMLN”) because he was a supporter of the Pakistan People’s Party (“PPP”).

7.  According to the applicant, the applicant encountered three incidents relating to threats and two incidents relating to attacks. For the attacks, the first incident occurred on or around June 2013. The applicant was assaulted by 5 people from the PMLN and was injured. The second incident occurred in January 2014, where the applicant was attacked by 7 PMLN people on the playground. Details of his claim are set out at paragraph 4 of the Notice of Decision dated 11 August 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

8.  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”).

9.  By way of the Director’s First Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: the absence or low intensity and frequency of past ill-treatment in the past was indicative of a small future risk of harm and the threat was localised [12-13]; reasonable state protection was available [14]; and internal relocation alternatives were available and reasonable [15-20].

10.  By way of the Director’s Further Decision dated 2 May 2017, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that through the duty lawyer service’s reply of 25 April 2017, the applicant confirmed that there was no additional facts to provide for assessment [3]. Having carefully reviewed the applicant’s claim, the Director held that the applicant failed to establish BOR 2 risk [6].

The Board’s Decisions

11.  The applicant appealed the Director’s First Decision to the Board. On 5 February 2015, the Board conducted an oral hearing for his appeal, and the Board found that the applicant withdrew his non-refoulement claim twice because he did not want to be detained and not because he felt there was a danger to his life [8-10].

12.  Having considered the evidence, the Board found that the applicant was not in the category of being a member of a political group nor was a person oozing charism, and the applicant failed to substantiate a claim after considering the case as a whole [70, 78-80]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds except BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s First Decision.

13.  The applicant appealed the Director’s Further Decision to the Board. On 19 August 2019, the Board conducted an oral hearing, and the applicant maintained that his problem in 2013 still existed in 2019 and PMLN wanted to harm him [12-13].

14.  Having considered the evidence, the Board held that the applicant’s claim failed under BOR 2 risk. By the Board’s Second Decision, it dismissed his appeal and confirmed the Director’s Further Decision.

15.  The Board’s First Decision and Second Decision are collectively called “the Board’s Decisions”.

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

16.  The applicant has filed Form 86 dated 18 October 2019 for leave to apply for judicial review of the Board’s Second Decision. He did not put forth any reasons.

17.  In his affirmation in support of his application, the applicant exhibited the hearing bundle including the Board’s Decision. He did not put forth any ground to challenge the Board’s Second Decision.

DISCUSSION

18.  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 Second 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).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.  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.”

21.  The applicant has raised no valid ground to challenge the Board’s Decisions.

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

DISPOSITION

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