Khuram Shahzad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2601/2019

[2025] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2601 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 August 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 12 March 2025.

The applicant

3.The applicant, aged 46, is a national of Pakistan. On 4 August 2017, he was arrested by police and he admitted having entered Hong Kong illegally on 10 June 2016. He registered a marriage with his wife in Hong Kong on 15 May 2012. He applied for dependent’s visa, but was refused on 18 November 2013. He lodged a non-refoulement claim by written representation dated 17 March 2009 on the basis that, if refouled, he will be harmed or killed by the family of his ex-girlfriend.

4.According to the applicant, he had a girlfriend of a higher caste. One day in 2006, when he was with his girlfriend, they were seen by his girlfriend’s brother. Her brother and he had a dispute. He was assaulted by her brother and his friend, who was a drug pusher. There was another occasion where he and his girlfriend were trying to elope because she was forced to marry another man. However, they were found by her brother and two other relatives. They called police and he was taken to the police station where he was tortured by the police officers by beating and hanging him mid-air over a table. He suffered redness and swelling over his body. He was detained in the police station from 7 p.m, to 2 a.m. The third occasion was when he walked passed his girlfriend’s house where he met her brother, who, together with the drug pusher assaulted him for 5-10 minutes. They tried to shoot him with a revolver. He ran away and lived in his friends’ places. He then came to Hong Kong. Details of his claim are set out in paragraph 13 of the Notice of Decision dated 13 February 2015 (“the Director’s Decision”).

The Director’s Decision

5.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 torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c. 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that from his experience in Pakistan, the level of risk of harm if he returns to Pakistan is low; state protection is available; and internal relocation is viable. [20]-[25]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 5 January 2017 and 16 May 2018, the Board conducted an oral hearing for his appeal.

8.At the hearing, the applicant refused to answer questions from the Board, despite the Board having reminded him of the chance of explaining the facts of the case. Having considered the evidence, the Board found that it is unlikely that his girlfriend’s family will harm the applicant in view of the fact that the girl had married and the abduction was a long time ago. [34] Besides, the Board found that internal relocation is viable [35], and state protection will be available if he returns to Pakistan. [34]-[35] Because of the finding of the facts, the Board dismissed the appeal and confirmed the Director’s Decision. [43]-[44]

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

9.The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, the applicant said that the Board’s Decision is unreasonable because it had not taken into consideration all the matters raised in his claim.

DISCUSSION

11.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).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think the Board was wrong. He might have not explained his case clearly. He asked the Court to review the Board’s Decision.

13.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.”

14.Those reasons under paragraph 10 are the applicant’s bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

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

DISPOSITION

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

The applicant appeared in person.