Khan Muhammad Shehroz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3341/2019

[2025] HKCFI 3632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3341 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 present 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 followings:

(1)   Decision dated 17 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 Notice of Decision dated 14 August 2018 (“the Director’s Decision”)

(3)   The Non-refoulement claim form; and

(4)   Record of screening interview.

2.The Director’s Decision has been superseded by the Board’s Decision.  The Non-refoulement claim form and the record of screening interview are not amenable to judicial review.  They fail in limine and are dismissed.

3.The applicant asked for a hearing.  He appeared before the Court on 21 July 2025.

4.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                                                                                                                     

5.The applicant is a national of Pakistan. He is an illegal immigrant as he sneaked into Hong Kong from China on 9 November 2015. He then surrendered to the Immigration Department on 11 November 2015. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his 2 cousins due to a land dispute. His cousins demanded his father to pass his land to them. His father refused whereupon they had a fight, in which the applicant took part. One of his cousin shot at him, but missed. Shortly afterwards, the applicant was assaulted on the street by his cousins. The applicant was afraid that his cousins might harm him, so he went to China, from where they came to Hong Kong.

6.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003341_2019_files/the_Board's_Decision.pdf.

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, 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

9.The applicant appealed the Director’s Decision to the Board. On 16 September 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and the Board had raised some questions for his clarification.

10.Having considered the evidence, the Board found the facts below.

(1)   The applicant’s treatment by his cousins did not meet the requirements under section 37U(1) of the Ordinance. [37]

(2)   State protection will be available to him. [39]

(3)   Internal relocation is viable if he returns to Pakistan. [47]-[51]

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

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

12.The applicant has filed Form 86 dated 8 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 has raised the grounds, which I summarize below.

(1)   He did not have legal assistance for his appeal.

(2)   He did not have translation or interpretation assistance for his appeal. As a result, he did not under the Board’s Decision and he was not fully prepared for his appeal. This is unfair to him.

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.  Before me, the applicant first said that he wished to return to Pakistan as he considered his chance of staying in Hong Kong is slim. He later simply asked the Court to review the Board’s Decision for him.

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.As to the grounds under paragraph 12, he was not entitled to free legal representation at all stages of the proceeding.[1] The applicant was also not entitled to free interpretation.[2]  Before this Court, the applicant confirmed that he understood the Board’s Decision.

18.Those grounds under paragraph12 are not valid to challenge the Board’s findings.

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

DISPOSITION

20.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 16^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