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

HCAL 3224/2019

[2025] HKCFI 3082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3224 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 August 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. However, he was absent at the hearing on 6 June 2025. I shall deal with his application on the papers.

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 and the date of the Board’s Decision is amended to 21 August 2019 instead of 12 July 2019.

The applicant

4.The applicant is a national of Pakistan. On 26 August 2015, the applicant was arrested, claiming that he entered Hong Kong illegally by board on the same day. 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 his enemies because they considered that he would take revenge on them for his father.

6.According to the applicant, his father was a businessman providing distribution and sales services to soft drinks companies. In around 2000, he was shot dead by an unknown person near the village. Because of the death, the business was forced to close down. He felt that after his death, the family was under the surveillance of enemies suspected to be the borrowers of his father. He also suspected his brother was poisoned to death but when asked to confirm his claim with evidence, the applicant confirmed that it was only his speculation. There were further incidents involving attacks until the applicant finally decided to escape. Details of his claim are set out at paragraph 11 of the Notice of Decision dated 25 January 2019 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 the claimed level of risk of being harmed or killed was assessed to be low; that the absence or low intensity of past ill-treatment was indicative of a small future risk of harm upon return to Pakistan; that part of the claim was based on hearsay information; and that a substantial period of more than 3 years had lapsed since the applicant fled the country [16]; that state protection was available [17-21]; and that internal relocation alternatives were available and reasonable [22-24].

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, during which the applicant adopted all the information contained in the Hearing Bundle and confirmed that they were all true and correct [33-34].

10.Having considered the evidence, the Board found that there was no basis of the applicant’s fear [35-47]. In any event, having considered the Country of Origin Information, it found that state protection was available [49], and internal relocation was a viable option [57-61]. 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. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003224_2019_files/the_Board's_Decision.pdf.

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 did not raise 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.

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.

Dated the 20^th day of August 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1