Raja Shahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3199/2019

[2025] HKCFI 2946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3199 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 present 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 18 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 9 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, aged 43, is a national of Pakistan. He was arrested by police on 26 January 2013 for not having any travel documents. He was referred to the Immigration Department. He admitted that he departed Pakistan for Mainland China on 11 January 2013 and sneaked into Hong Kong by boat on 26 January 2013. He lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his former employer, Sabir, and his people because he refused Sabir’s instruction to kill someone.

5.According to the applicant, Sabir was annoyed after he refused his request to kill someone. Sometime later, he was attacked by Saibir’s people with fist and stick. He was taken to a hospital for medical treatment. He had reported the matter to police, which did not accept his complaint, saying that Sabir was a friend of the Prime Minister. He had to hide up by living in his friends’ places in order to avoid Saibir. He followed his friends’ advice and left Pakistan for Hong Kong.

6.Details of his claim are set out at paragraph 6 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, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, there was no evidence to show that Saibir intended to kill him, and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 15 October 2017, the Board conducted an oral hearing for his appeal.

10.The Board had made an extensive enquiry on the facts of the applicant’s claim. Having considered the evidence, the Board found that he was not a witness of truth and that he had exaggerated and fabricated aspects of his claim. [53] The Board had considered his evidence in relation to each of the applicable risks and it concluded:

“75. For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, having carefully assessed the Appellant’s claims, the Board rejects them, both individually and cumulatively, in their entirety.

76. In light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Pakistan.”

11.For the reasons above, the Board dismissed his appeal. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003199_2019_files/the_Board's_Decision.pdf.

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

12.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any reason to challenge the Board’s Decision.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Upon enquiry, the applicant admitted that he could not challenge the Board’s Decision.

16.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.”

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 26^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