RIAZ DANYAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 236/2025, [2025] HKCA 967

On Appeal from [2025] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2025

(ON APPEAL FROM HCAL NO 2889 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Background

1.  On 22 April 2025, Deputy High Court Judge K. W. Lung refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim.[1]  The applicant filed a notice of appeal against the decision on 28 April 2025.

2.  This appeal was scheduled to be heard on 28 October 2025.  Despite the directions from the High Court to the applicant dated 5 September 2025, the applicant failed to lodge written submissions by the stipulated time.  As the said directions were not complied with, the hearing date has been vacated pursuant thereto.  The Court will deal with this appeal on paper.

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 10 May 2016 and surrendered to the Immigration Department on 12 May 2016.  He lodged his non-refoulement claim on 15 June 2016 on the basis that he will be harmed or killed by some members of the Pakistan Muslim Legaue (N)  (“PMLN”).

4.  By a Notice of Decision dated 26 November 2018, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR

BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The applicant filed an appeal against the Director’s decision.  He appeared at the hearing of his appeal before the Board on 12 September 2019.  The Board found that there was no evidence to show that it was the people from PMLN who fired the shots at the applicant in the first incident.  The Board also considered that the fact that the shooters did not enter the applicant’s house with the deadly weapon indicated that they did not have the intention to harm or kill him.  The Board further found that the applicant’s enemies had no intention in pursuing him after the second incident as there was nothing to show that the PMLN people had looked for the applicant after the applicant and his family left for Islamabad.  Taking into account all relevant circumstances including the absence of physical injury as well as low intensity and frequency of past ill-treatment from his enemies, the Board did not accept that there would be a foreseeable and real risk of harm on the applicant from the PMLN people upon his return to Pakistan.  In addition, the Board did not accept the applicant’s complaint that the Pakistani police took no action as the warrant of arrest was issued upon the applicant’s report of the incident to the police.  The Board found that there was no evidence to show that the police or any public official have any connection with the PMLN people or that the state was unwilling or unable to afford protection to the applicant.  Thus, the Board concluded that the applicant failed to establish his claim on any of the applicable grounds and rejected the appeal on 27 September 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 2 October 2019 to seek leave to apply for judicial review against the decision of the Board.  His grounds for his intended challenge may be summarised as follows:

(1)  The Director and the Board reached their decisions wrongly.  Their decisions are unreasonable and unfair.  The adjudicator failed to give the applicant sufficient time and chance to arrange relevant evidence;

(2)  The Director has failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which has led to an unfair outcome.  The Director failed to take such argument into account or failed to give enough weight to such argument.

(3)  Although the Director listed the relevant country of origin information which supports the applicant’s averment that the police in his country would not be able to protect him, the director failed to consider or give enough weight to such evidence and ruled otherwise;

(4)  The corruption and incompetence of the administration in his country is still a very serious problem;

(5)  The director has failed to attain the high standard of fairness required by the Wednesbury test in the decision.

7.  The hearing of the leave application was conducted before DHCJ K. W. Lung on 12 March 2025.  The Judge found the applicant’s grounds are just bare assertions which are not valid to challenge the Board’s decision.  As the applicant failed to show any realistic prospect of success in his proposed judicial review, the Judge refused the leave application on 22 April 2025.

Grounds of appeal

8.  In his notice of appeal filed on 28 April 2025, the applicant stated that he disagreed with the decisions of the Director and the Board and he expressed the view that his claim was not determined fairly.

Legal principles

9.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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 (See Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

10.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

11.  In the present appeal, the applicant did not point out any mistake or unfairness in the Judge’s decision.  He simply disagreed with the decision of the Director and the Board.  He did not provide any particulars to support his allegation that his claim was not determined fairly.

12.  Thus, the applicant’s appeal is devoid of merit and is dismissed accordingly.