Butt Kamal Saeed Qadir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3223/2019

[2025] HKCFI 2888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3223 OF 2019

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BETWEEN

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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 24 October 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 6 June 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. On 22 June 2016, the applicant surrendered to the Immigration Department, claiming that he sneaked into Hong Kong on 10 June 2016. In due course, he lodged a non-refoulement claim in Hong Kong.

5.The applicant’s claim was based on his fear of being harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PMLN”) because of a political dispute with them.

6.According to the applicant, the applicant was a supporter of the Pakistan Tehreek-e-Insaf political party (“PTI”). PMLN created a lot of trouble in the region to weaken the influence of PTI and there were conflicts, including multiple fight incidents with PMLN members. Visible scars were left in the aftermath of these fighting incidents, so the applicant sought refuge. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 April 2018 by the Director (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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that there were no substantial grounds for believing that the perceived fear was real and foreseeable; that the claimed level of risk of being harmed or killed was assessed to be low, and it was not accepted that there was any reasonable likelihood that the applicant would be ill-treated by members of the PMLN in the whole state of Pakistan [11]; that state protection was available [12]; and that internal relocation alternatives were available and reasonable [13].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 26 September 2019, the Board conducted an oral hearing for his appeal, during which the applicant adopted all the information contained in the Hearing Bundle and confirmed that they were true [6-9].

10.Having considered the evidence, the Board found that there were no credible evidence or any substantial grounds for believing that the applicant would face a real risk on all applicable grounds [61, 64, 69, 75]. In any event, it found that internal relocation was not unreasonable or unduly harsh [76-82]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision. [hyperlink to Board’s Decision, if available]

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

11.The applicant has filed Form 86 dated 29 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 said that he did not want to go back to Pakistan. He did not raised any 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. 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 said that he understood the Board’s Decision and that he was free to make submissions to the Board. He considered that the Board was not wrong in its decisions.

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

DISPOSITION

17.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.