Ali Ahtisham v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 740/2025

[2025] HKCFI 4045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 of 2025

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 13 March 2025 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 21 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. He is an illegal immigrant as he admitted that he sneaked into Hong Kong from China by boat on 12 August 2024. He surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his uncle over a land dispute. His father had inherited a piece of land from his grandfather. His uncle wanted to take over his father’s land. They had argument and a fight, in which the applicant had taken part. His uncle had brought other people to support him. During the fight, his uncle’s people had shot at him. He managed to escape. He came to Hong Kong for his safety.

5.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000740_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.By way of the Notice of Decision dated 9 January 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 March 2025, the Board conducted an oral hearing for his appeal. The applicant had answered the Board’s questions at the hearing.

9.Having considered the evidence, the Board made the following findings.

(1)  The applicant’s evidence that he would be harmed or ill-treated by his paternal uncle if he returns to Pakistan was incredible. [77]

(2)  The Board failed to see any real chance that the applicant will be harmed by his uncle if he is refouled. [78]

(3)  Internal relocation is viable if the applicant returns to Pakistan. [83]

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 24 March 2025 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 believed that the Director (including the Board) had made a wrong decision because they had not been to his country to understand his situation there.

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 ground under paragraph 12 will not assist the applicant’s application as the Director or the adjudicator does not have to go to his country to understand his situation. They may rely on the country of origin information, which they had done in their assessment of the applicant’s case. The applicant has therefore 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 5^th day of September 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