Case Document

100%Judiciary

HCAL 3198/2019

[2025] HKCFI 3081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3198 of 2019

BETWEEN
	Nasir Mehmood	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 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. However, he was absent at the hearing on 9 June 2025. I shall deal with his application of 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, aged 36, is a national of Pakistan. He was arrested by police on 8 September 2014. He admitted that he entered Hong Kong illegally the day before. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by persons associated with the Pakistan Muslim League (Nawaz) (“PML(N)”) due to his involvement with the Pakistan Tehreek-e-Insaf (“PTI”).

5.According to the applicant, shortly after the general election where the rival party became the ruling party, he and his friends were attacked by members of the PML(N) with punches, kicks and beating with wooden sticks. They also threatened to kill him. For these reasons, the applicant left Pakistan for Hong Kong.

6.Details of his claim are set out at paragraphs 16-23 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, state protection is available and internal relocation is viable upon his return, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 2 September 2019, the Board conducted an oral hearing for his appeal. However, he was absent despite attempts were made to give him notice by the staff of the Board. Notice was given to him to advise him to give written explanation for his absence and another date was fixed for him. He did respond to the notice; nor did he attend the adjourned hearing. The Board decided to assess his appeal on the evidence before it.

10.Having considered the evidence, the Board found that the applicant failed to establish by evidence that he was genuinely sought by his enemies, or that he will be harmed upon his returned to Pakistan. The Board was also not satisfied that he will be of interest to the PML(N), which is no longer in power in Pakistan. The Board was not satisfied that the applicant left Pakistan for the reasons he claimed. [37] See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003198_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 28 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 reason 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 2^nd day of September 2025

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 2/9/2025 Nasir Mehmood Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/9/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9992/18/1/265/P1932 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3156/17 (formerly RBCZ 3001789/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)