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HCAL 3322/2019
[2025] HKCFI 3642
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3322 of 2019
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BETWEEN
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Ayub Usman |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 21 October 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 4 January 2018, the applicant surrendered and claimed he sneaked into Hong Kong on 30 December 2017. In due course, he lodged a non-refoulement claim in Hong Kong.
5. The applicant’s claim is based on his fear of being harmed or killed by members and/or supporters of the Pakistan Muslim League (Nawaz) (“PMLN”) and their subordinates (collectively referred to as “Enemies”).
6. According to the applicant, he was a supporter of the Pakistan People’s Party (“PPP”). In an incident in 2016 during a local election, PMLN supporters started attacking you and other PPP supporters with hockey sticks and was injured. The applicant did not go to the hospital because he feared PMLN supporters were able to find him. It took about a month to fully recover and the applicant lived in fear that PMLN supporters would take further revenge and then fled to Dubai and then Hong Kong in 2017 Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 September 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: there were no substantial grounds for believing that there would be any substantial risk of being harmed or killed by his Enemies, it was not accepted that the applicant was subjected to any real or continuous risk of harm, and the assertion was too far-fetched [11-13]; state protection was available [14-20]; and internal relocation alternatives were available and reasonable [21-27].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 11 October 2019, the Board conducted an oral hearing for his appeal, during which the Board considered the applicant’s case covering all the grounds and took into account all the materials supplied in the hearing bundle [14-19].
10. Having considered the evidence, the Board found the applicant did not face a high risk that he would be subjected to harm [149]. In any event, having considered the Country of Origin Information, it found that state protection appeared available to the applicant [148, 150-171], and internal relocation was a viable option [172-191]. 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/HCAL003322_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 7 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 the Board’s Decision was wrong, he said he could not say the Board’s Decision 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 28th day of August 2025
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(Klein Tse)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 28/8/2025
Ayub Usman
Applicant’s ref. no:
Nil |
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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 28/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13442/18/9/203/P2649
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3075/18 [T9I75]
(formerly RBCZ 10512/18)
(PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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