Hussain Abid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1193/2020

[2025] HKCFI 4228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1193 of 2020

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 Decision dated 12 June 2020 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.  He appeared before the Court on 22 August 2025.

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, having entered Hong Kong illegally from Mainland on 9 January 2016. He surrendered to the Immigration Department on 18 January 2016 where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by members of Pakistan Muslim League (Nawaz) (“PMLN”) and Irian Hussain, the leader in his local home (“his enemies”) because he changed his support from PMLN to Pakistan Tehreek e Insaf (“PTI”).

5.According to the applicant, his enemies had attacked him and his wife.  He had sustained left arm fracture and admitted to hospital for a week.  They had also threatened him with death.  They framed up a murder allegation against him, too.

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/2020/HCAL001193_2020_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, 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 5 March 2020, the Board conducted an oral hearing for his appeal.  He refused to give evidence and answer the Board’s question despite the Board having advised him of his burden of proof of his claim and it was an opportunity for him to clarify the issues. [52]

10.Having considered the evidence before it, the Board made the following findings, dismissed his appeal and confirmed the Director’ Decision.

(1)  There were inconsistencies in his evidence. [63]-[64]

(2)  He did not seek protection shortly after he arrived in Hong Kong.  He sought protection 7 months after his arrival in Hong Kong, which would adversely affect his credibility. [73]

(3)  It did not believe his evidence that he had been assaulted and threatened by Irfan and PMLN people in his home village. [75]

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

11.The applicant has filed Form 86 dated 16 June 2020 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.  Before me, the applicant confirmed that he was free to state his case before the Board.

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 hearing before the Board was fair.  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 26^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