Armani Hakim Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2620/2024

[2025] HKCFI 4052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2620 of 2024

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 December 2024 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 23 July 2025. I shall deal with his application on the papers.

The applicant                         

3.The applicant is a national of Afghanistan. He is an illegal immigrant arrested by police on 29 July 2024. He lodged a non-refoulement claim on 7 August 2024 on the basis that, if refouled, he will be harmed or killed by members of the Taliban.

4.According to the applicant, he used to be an operator of an excavator in Afghanistan working for a company, which took jobs from the government. Taliban members threatened to kill him if he continued to work for the government. In 2020, when he was working in the construction site, some fighters came and fired their guns towards the workers on the construction site. He left his excavator on the site and ran away with other workers. He reported to the government, which took no further action. He moved to live in his parents’ home and worked as a driver.

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/2024/HCAL002620_2024_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 Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, 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 10 December 2024, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board found the facts as follows, dismissed his appeal and confirmed the Director’s Decision.

(1)  His story is internally consistent as to the private dispute with some unknown people. [52]

(2)  The Board did not believe that the government would not take actions to assist him if he reported the case to them. [62]

(3)  The country of origin information shows that the Afghan government has tried their best to combat corruption, improve police professionalism and protect the returnees. Therefore, state protection will be available if he returns to Afghanistan. [99]

(4)  There is no evidence that he was targeted by or of interest to the Afghan government. [117]

(5)  On the totality of the evidence, there is no foreseeable, real personal and present risk of being tortured if he returns to Afghanistan. [120]

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

10.The applicant has filed Form 86 dated 24 December 2024 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has, insofar as the Board’s Decision is concerned, raised the grounds below in support of his application:

(i)  unreasonable and unfair assessment;

(ii)  failure to consider state acquiescence;

(iii)  excessive reliance on country of origin information (“COI”);

(iv)  procedural impropriety and unfair assessment by unreasonably demanding him to answer questions;

(v)  insufficient time and opportunity to present evidence; and

(vi)  the Board had all of his story and it should not have dismissed his appeal,

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.Those grounds under paragraph 11 are the applicant’s bare assertions of his personal views without any evidence in support. They are not valid ground to challenge the Board’s findings[1].

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

DISPOSITION

17.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