|
HCAL 3312/2019
[2025] HKCFI 3337
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3312 of 2019
| BETWEEN |
|
|
|
Ali Haider |
Applicant |
|
and |
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration
|
Putative 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 15 July 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 14 July 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 22 April 2016, the applicant surrendered to the Immigration Department, claiming that he sneaked into Hong Kong on 2 February 2016. 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 a man named Zulfiquar (“Z”) because of a political dispute with him.
6. According to the applicant, the applicant was a supporter of the Pakistan Tehreek-e-Insaf political party (“PTI”). The Pakistan Peoples Party (“PPP”) was the ruling party at that time and Z was an active member. There was an incident where the applicant was a front man for PTI and Z was a front man for PPP at a party rally, during which a big fight between PTI and PPP occurred, and Z and his people fired their pistols, which killed 2 PTI people. The applicant sustained injuries and was hospitalized for 3 days. The applicant then fled to avoid Z. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 August 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 absence or low intensity of past ill-treatment was indicative of a small future risk of harm upon return to Pakistan, the acts of Z did not show any real intention to kill the applicant, and a significant part of the claim was based on hearsay and more than 2.5 years had lapsed since the applicant last departed in January 2016 [11]; state protection was available [12-16]; and internal relocation alternatives were available and reasonable [17-18].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 6 May 2019, 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 [27-29].
10. Having considered the evidence, the Board accepted the core factual issues of the applicant’s claim. However, the Board found the applicant will not be subjected to the applicable risks if he returns to Pakistan. [50]-[84] In any event, it found that state protection will be available [79]-[80]; and internal relocation was not unreasonable or unduly harsh [68]-[71]. 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/2019/HCAL003312_2019_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 6 November 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 reason 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. Before me, when asked if he considered that the Board was wrong, he said that he could not say the Board was wrong.
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.
Dated the 10th day of September 2025
| |
(Allen LEE)
for Registrar, High Court |
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 10/9/2025
Ali Haider
Applicant’s ref. no:
Nil
|
|
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 10/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14875/18/12/232/P2970
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4474/18 (formerly RBCZ/12061/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|