SHAHZAD BABAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1232/2025

[2026] HKCFI 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1232 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 26 March 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

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.  He is an illegal immigrant, having entering Hong Kong illegally from China on 3 December 2013.  He was arrested.  He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by a Mr. Hashim Shah because he had reported against him for burglary.  Hashim had attempted to kill him.

5.  Details of his claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001232_2025_files/the_Board's_Decision.pdf

The Director’s Decision

6.  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”).

7.  By way of Notice of Decision dated 15 April 2016 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks except BOR 2 risk because it was unsubstantiated.  By a Further Decision dated 21 February 2017, the Director dismissed his claim on BOR 2 risk for the same reason.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 29 March 2017 and 24 March 2021, the Board conducted an oral hearing for his appeal.  He had given oral evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board made the findings below.

(1)   His evidence in relation to the shooting incident was not credible. [81]

(2)   The Board rejected his claim that he disclosed to the authorities Hashim’s involvement  in the burglary and that Hashim ever shot at him.[82]

(3)   The Board gave weight to his evidence that he had stayed in his home for some 5 or more months until departing Pakistan in August 2013.  Despite knowing where he was, Hashim did not harm him, which suggested he was not of any meaningful interest to Hashim at the time he left the country and there was little to suggest this has changed. [83]

(4)   State protection will be available. [88]

(5)   He will not face any real risk of harm if he returns to Pakistan. [89]

10.  For the reasons above, the Board dismissed his appeal and affirmed 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 28 May 2025 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 raised 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.  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.

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

Form CALL-1