Iqbal Zafar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3325/2019

[2025] HKCFI 4262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3325 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 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. He appeared before the Court on 21 July 2025.

The applicant

3.The applicant is a national of Pakistan. He entered Hong Kong illegally on 20 March 2019. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the leader of Pakistan Muslim League called Malik because he refused to join his party. Malik and his people had attacked him with sticks. His forehead and calf were bleeding and his right collar bone was fractured. He fell unconscious. He had to receive medical treatment. He also learned that his sister had been killed. Details of his story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003325_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

4.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”).

5.By way of Notice of Decision dated 31 July 2019 (“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

6.The applicant appealed the Director’s Decision to the Board. On 18 October 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

7.Having considered the evidence, the Board found that his experience did not reach the level of severity that amounted to torture [21]&[40]; that state protection will be available to him [29]-[32]; and that he will not face a genuine and substantial BOR 3 risk; and the Board did not accept he will be harmed by Malik if he returns to Pakistan [64].

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

8.The applicant has filed Form 86 dated 7 November 2019 for leave to apply for judicial review of the Board’s Decision.

9.In support of his application, the applicant had raised, insofar as the Board is concerned, the grounds below.

(1)  The Board’s Decision is not reasonable.

(2)  The Board had not considered state acquiescence.

(3)  The Board had placed too much reliance of the country of origin information, but failed to consider his personal background and experience.

(4)  The Board had asked him to respond to questions that he was not in a position to offer any response and the Board did not consider political parties and corruption in his country.

DISCUSSION

10.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).

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, upon being asked if he considered that the Board was wrong in its decisions, he said the Board was not wrong and he wanted the Court to review the Board’s Decision.

12.In view of the applicant’s admission that the Board was not wrong in its decisions, the grounds under paragraph 9 become insignificant. They are his bare assertions or personal opinion without any evidence in support.

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

DISPOSITION

14.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 25^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