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

HCAL 2882/2019

[2025] HKCFI 1889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2882 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 27 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 39, is a national of Pakistan. The applicant came to Hong Kong illegally and was arrested by police on 5 July 2009. He raised a torture claim on 8 July 2009 and failed. He appealed to the Board, which dismissed his appeal. He got married in Hong Kong. His non-refoulement claim is basis upon his allegation that, if refouled, he will be harmed or killed by the people of Choudhry clan, the gangsters, because of a dispute over the use of a cricket playground in the area where he lived.

5.According to the applicant, he and his friends had been playing cricket in the said playground for about 10 years. In a day in March or April 2009, when they were playing cricket in the said playground, a group of 30-40 people who claimed to be from Salamghar of Choudhry expelled them from the said playground. The brought with them weapons and pistols. They fired the pistols to the air to frighten them. There was a fight between them. The applicant was injured and suffered some internal rib injuries and a cut on his left middle finger. He had been admitted in hospital for treatment. It took 2 weeks for full recovery. The gangers continued to threaten him. He had reported to police, which had taken no action. He had to move to live in some other places in order to avoid them. On 23 June 2009, he left India for China and he entered into Hong Kong illegally by boat.

6.Details of his claim are set out at paragraph 9 of the Notice of Decision dated 22 August 2018 (“the Director’s Decision”).

The Director’s Decision

7.Since the Director had rejected the applicant’s torture claim, the Director considered the applicant’s claim in relation to the following risks:

a. 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”);

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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) low intensity of previous ill-treatment from his enemies is indicative of a small future risk of harm if he returns to India; (ii) state protection will be available; and (iii) internal relocation is viable. [15]-[24]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 22 July 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found dismissed his appeal and confirmed the Director’s Decision for the reasons below.

(1) The Board did not accept that his enemies, after 10.5 years, are still interested in locating the applicant all over Pakistan, especially over the use of the said playground. [18]

(2) The applicant has not suffered serious harm previously, which will place him at any substantial future risk of BOR 3.

(3) There was no evidence of any substantial risk to the applicant’s life.

(4) The situation as alleged by the applicant falls short of establishing Persecution risk.

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

11.The applicant has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant his raised no 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. T he 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, the applicant said that the Board did not believe his evidence and he asked the Court to review the Board’s Decision.

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.There is no valid ground from the applicant to challenge the Board’s Decision as the Board has the discretion to determine whether his evidence was acceptable.

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.

The applicant appeared in person.