Khan Nouman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2871/2019

[2025] HKCFI 1686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2871 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 9 April 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, aged 30, is a national of Pakistan. He was arrested by police on 9 May 2016. He admitted that he sneaked into Hong Kong illegally on 8 May 2016. He raised a non-refoulement claim by written submission on the basis that, upon refoulement, he will be harmed or killed by his former girlfriend, Sania’s family because of his courtship of Sania and her family thought that he had insulted their family’s honour by ruining the character of Sania.

5.According to the applicant, He was in love with Sania when he was 19 years old. They intended to get married, but their respective families disapproved of their relationship. Sania’s family frequently troubled and threatened him. Sania’s 3 brothers beat him up and threatened him on the street. They had also gone to his house where they assaulted his family members with weapons such as guns, pistols and wooden poles. His father was killed. He was slightly injured. It took 10 days for recovery. He left Pakistan and arrived in Guangzhou, China on or about 18 April 2016. He sneaked into Hong Kong on 3 May 2016.

6.Details of his claim are set out in paragraph 6 of the Notice of Decision dated 14 June 2018 (“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 dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of ill-treatment from Sania’s family in the past is indicative of small future risk of harm upon his return to Pakistan; (ii) state protection will be available; and (iii) internal relocation is viable. [11] – [19]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 30 August 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found the following facts.

(1) The degree of torture risk is not high and there is no evidence of state involvement in the incidents. [28]-[29]

(2) Sania’s brothers did not have any intention to kill the applicant. [32]

(3) The issues of race, religion, nationality or membership of a particular social group or political opinion are not engaged. [36]

(4) Internal relocation is viable. [49]-[58]

11.For the above reasons, the Board dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 30 September 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

16.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.”

17.There is no valid ground from the applicant to challenge the Board’s Decision.

18.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

20.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.