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

HCAL 3339/2019

[2025] HKCFI 3655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3339 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 1 November 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”), dismissing his appeal against the Director’s 2^nd Decision on BOR 2 risk.

2.In the Director’s 1^st Decision, the Director rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The applicant had also appealed the Director’s 1^st Decision to the Board. In the Board’s 1^st Decision, the Board dismissed his appeal. He did not apply for judicial review of the Board’s 1^st Decision.

3.Since the facts of the Board’s 2^nd Decision are the same for the Board’s 1^st Decision, the Court will take into consideration of the Board’s 1^st Decision for this application as well.

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

5.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

6.The applicant is a national of Pakistan. On 23 June 1996, he came to Hong Kong as a visitor. He overstayed since 24 September 1996 and was arrested by police on 27 July 2007. On 13 November 2007, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed by his 2 step-brothers because of a land dispute. They wanted to take possession of the applicant’s land.

7.According to the applicant, his stepbrothers had sent 3 other people to demand him to sign a transfer document of the land. He refused. They threatened to kill him. They had also gone to the applicant’s home to make their demand. There was a scuffle between them, but he had sustained no injury. He reported the matter to police, which had taken no action.

8.Details of his claim are set out in the Board’s Decisions. See hyperlink for the Board’s Decisions https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003339_2019_files/1st_Board's_Decision.pdf and https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003339_2019_files/2nd_Board's_Decision.pdf.

The Director’s Decisions

9.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”).

10.By way of Notice of Decision dated 11 July 2014 (“the Director’s 1^st Decision”) on Torture risk, BOR 3 risk and Persecution risk and Notice of Further Decision dated 17 February 2017 (“the Director’s 2^nd Decision”) on BOR 2 risk, 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 Decisions

11.The applicant appealed the Director’s 1^st Decision to the Board. The Board did not conduct an oral hearing for the appeal.

12.The Board found that on the totality of the evidence, the applicant wanted to stay and to work in Hong Kong as a “free person” [29]; that as the applicant only lodged a torture claim when he faced the prospect of repatriation, he was not a credible witness and his torture claim was not genuine [43]. It therefore found that he failed to substantiate his claim of the applicable risks and dismissed his appeal. [45] & [49]

13.The applicant also appealed the Director’s 2^nd Decision to the Board. On 10 September 2019, the Board conducted an oral hearing for his appeal.

14.The Board decided to consider the applicant’s claim afresh. [6] The Board had also considered new documents submitted for its consideration. The new evidence revealed that the land was registered in his sole name and his twin brothers were killed. It found that there was no evidence that his stepbrothers had killed his twin brothers. Finally, it found that the applicant failed to show that his right to life will be at risk if he returns to Pakistan. It therefore dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

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

15.The applicant has filed Form 86 dated 3 November 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not believe his evidence.

19.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.”

20.Credibility of his evidence is solely within the Board’s province. The applicant has raised no valid ground to challenge the Board’s 2^nd Decision.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd 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