Nawaz Muhammad Umar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3295/2019

[2025] HKCFI 3410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3295 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 31 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 14 July 2025. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Pakistan. On 2 April 2019, the applicant was arrested by police. He claimed that he landed unlawfully in Hong Kong on the same day. In due course, he lodged a non-refoulement claim in Hong Kong.

4.The applicant’s claim was based on his fear of being harmed or killed by members of the Pakistan Tehreek-e-Isaaf (“PTI”) due to a political dispute (collectively referred to as “Enemies”).

5.According to the applicant, he was a supporter of the Pakistan Muslim League (Nawaz) (“PMLN”). The applicant was requested by the local chairman of the Union Council to switch his political affiliation with PTI from PMLN, and there were clashes between the parties during election time. In August 2018, when he was sitting in the PMLN party office, he was attacked by men carrying AK-47 guns and started shooting at him. The applicant did not suffer any injury but then fled. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 July 2019 by the Director (the “Director’s Decision”).

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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the level of risk of harm was assessed to be low, the low frequency and absence of actual injury was indicative of a small future risk of harm, and political association with PMLN did not constitute any significant threat or that the PTI members were as powerful and influential as asserted [13]; state protection was available [14-17]; and internal relocation alternatives were available and reasonable [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 October 2019, the Board conducted an oral hearing for his appeal, during which the Board asked questions to find out the applicant’s involvement [11-12, 21-32].

9.Having considered the evidence, the Board found that the core assertions to the non-refoulement claim had been fabricated or was wholly unreliable [40]; that there was no, or no reliable evidence that the applicant suffered any physical and/or mental suffering and that he was at most only frightened [45]. In any event, the Board found that there was no reliable evidence to show that there was no state protection available [47-48]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003295_2019_files/the_Board's_Decision.pdf.

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

10.The applicant has filed Form 86 dated 5 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his reasons in support of his application, the applicant has included generic prepared grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and not fair; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and the Director’s failure to attain a high standard of fairness.

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

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 15^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