Fiaz Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2956/2019

[2025] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2956 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 September 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 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 is a national of Pakistan. He illegally entered Hong Kong via boat on 9 April 2006 and surrendered to police on 1 May 2006. He absconded in January 2008 until he was arrested by police on 8 December 2008.

5.The applicant lodged his torture claim on 3 May 2006, which was refused by the Director on 2 April 2013 in a Notice of Decision dated 2 April 2013 (the “Director’s 1^st Decision”). The petition to the Board was rejected on 16 July 2013. In due course, the applicant lodged his non-refoulement claim.

6.The applicant’s claim was based on his fear of being harmed or killed by his enemies, namely Malik Muhammad Ali (“Malik”) and his son, Fakhar Abbas (“Fakhar”), and Saddique’s syndicates as the applicant’s brother was the president of the Muslim League Student Federation. The applicant also feared the police as faked police reports were filed against him.

7.According to the applicant, there was an incident where Saddique’s syndicates were gangsters and the applicant was threatened twice. He was also attacked by Malik in two incidents after demanding the applicant to leave his dairy shop. There were also fighting incidents with Fakhar. Details of his claim are set out under the heading “Basis of Claim” in the Director’s 1^st Decision.

8.The applicant later included the fear of Muhammad Tariq (“Tariq”) which has attacked him in Hong Kong 3 times [13.95]. Details of his claim are set out at paragraph 13 of the Notice of Decision dated 8 September 2017 by the Director (the “Director’s 2^nd Decision”).

The Director’s Decisions

9.The Director considered the applicant’s claim in relation to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture risk”).

10.By way of the Director’s 1^st Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the basis of claim did not amount to torture and no real risk of torture upon return.

11.The Director then considered the applicant’s claims in relation to the following risks other than Torture risk:

(1)  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”);

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

(3)  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 (“Persecution risk”).

12.By way of the Director’s 2^nd Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: there were no substantial reasons to believe that the applicant would be in danger of being harmed or killed by his enemies and that all the disputes were personal and private in nature [19-25], due process and fair trial would be available [26-32]; and internal relocation alternatives would be available and reasonable [33-40].

The Board’s Decision

13.The applicant appealed the Director’s Decisions to the Board. On 5, 6 June 2018 and 12 March 2019, the Board conducted oral hearings for his appeal. The applicant was legally represented. A government counsel represented the Director. At the hearings, the Board found much of the applicant’s evidence being hearsay [62]. The applicant had also accused the Board of being in a hurry to refuse his case [65].

14.Having considered the evidence, the Board accepted the applicant’s medical evidence and that it was consistent with suffering assaults and gunshot wounds. However, it did not accept that the applicant provided a credible account as to how these injuries were incurred [109]. Based on the evidence, the Board found that the applicant did not face a real risk of proscribed harm under any of the grounds [120]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

15.The applicant filed the Form 86 on 9 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

16.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but again did not put forth any grounds.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant reiterated that he was sick and he had mental problem as well. He asked the Court to review the Board’s Decision.

19.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.”

20.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

22.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.