Fahim Mehmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3309/2019

[2025] HKCFI 3653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3309 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 1 November 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 14 July 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.

The applicant

4.The applicant is a national of Pakistan. On 7 November 2006, the applicant was arrested by police and he claimed that he entered Hong Kong illegally on 8 May 2006.

5.The applicant lodged his torture claim on 24 November 2006, which was refused by the Director on 22 March 2013 and the appeal dismissed on 14 May 2013. In due course, the applicant lodged his non-refoulement claim.

6.The applicant’s claim was based on his fear of being harmed or killed by the Pakistani police because he did not disclose his father’s whereabouts.

7.According to the applicant, his father was a councillor of the Pakistan Muslim League (N) (“PMLN”) and won election in 1995. The applicant joined the Muslim Student Federation (“MSF”) which belonged to the PMLN. After a change of government, members of the PMLN were arrested by the government. In early 2002, the police arrested him and he was beaten and tortured for around a month as the police wanted to obtain some information about his father. Subsequently, he was bailed out by his uncle. In mid-2002, the applicant was again arrested and was ill-treated again for around a month. The applicant managed to escape and fled. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.The Director had dismissed 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”).

9.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 risk of harm was assessed to be low, a significant part of the applicant’s claim was hearsay, the ill-treatment did not attain a minimum level of severity, and the applicant did not raise his torture claim immediately but only after being arrested [22-28]; state protection was available [29-38]; and internal relocation alternatives were available and reasonable [39-45].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 29 August 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant responded to the Board’s questions, which clarified the claims and was extensively documented in the Board’s Decision [41-77].

11.Having considered the evidence, the Board considered the facts and on the totality of the evidence. It did not accept that the applicant was a witness of truth and rejected his claim in its entirety [87]. The Board concluded that the applicant’s claim failed under all applicable grounds [91-94]. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003309_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 6 November 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 specific 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.

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 has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

19.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 28^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