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

HCAL 601/2025

[2025] HKCFI 2435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 601 OF 2025

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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 28 February 2025 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 23 May 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 Afghanistan. According to the applicant, he claimed to have arrived in Hong Kong illegally by boat on 27 April 2024 and was arrested by police on 13 September 2024. In due course, he lodged a non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his girlfriend’s family members whose names the applicant did not know. This is because of the relationship he has with his girlfriend.

6.According to the applicant, the applicant used to live in the same neighbourhood as his girlfriend and they fell in love in around January 2024. In March 2024, the girlfriend was found to be pregnant out of wedlock, which is considered a crime under Islamic law. Later, the applicant’s sister found out that the girlfriend was shot dead and that the girlfriend’s siblings were searching for the applicant. Details of his claim are set out at paragraph 7 of the Board’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 dated 22 November 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 20 January 2025, the Board conducted an oral hearing for his appeal, during which the applicant confirmed that the source of his fear were his girlfriend’s family members, not from Afghan police, the government or other parties [6].

10.Having considered the evidence, the Board found that the applicant only made bare assertions and provided no objective proof of his assertions at all [11] and concluded that the applicant’s claim was not credible [66]. The applicant was unable to adduce written or solid evidence in support of his alleged relationship with his girlfriend, such as photos or text messages and no or no reliable evidence was found that the applicant had been ill-treated by the state or the girlfriend’s family in the past. In any event, the Board found no evidence to suggest that state protection was not available to the applicant [84], and internal relocation was not unreasonable [131-132]. 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

11.The applicant filed the Form 86 on 10 March 2025 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

12.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and included a copy of his grounds. The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were wrongly reached and were not reasonable and fair, the Director failed to appreciate or give proper importance to the presence of state acquiescence, and that this was a clean case of unfair attitude shown by the Director. There were no particulars or details in support of the applicant’s bare assertions.

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, the applicant confirmed that he understood the Board’s Decision and that he was free to speak before the Board.

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.

The applicant appeared in person.