Rehman Abdul v. Torture Claims Appeal Board

HCAL 1709/2025

[2025] HKCFI 4627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1709 of 2025

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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant did not ask for a hearing.

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 had entered Hong Kong illegally and lodged torture claim previously in 2007, 2011 and 2013 respectively. However, he withdrew his applications and was repatriated. Police arrested him again on 5 January 2024 for illegally remaining in Hong Kong. He had committed offences for which he was convicted and sentenced to imprisonment. He lodged his non-refoulement claim on 7 February 2025, which the Director of Immigration (“the Director”) treated as his subsequent claim.

5.According to the applicant, if he is refouled, he will be harmed or killed by a person called SMS who was a member of provincial assembly and a Shia leader in his hometown. SMS asked him to convert to Shia. He refused. SMS and his people had gone to his home where they killed his parents and his two sisters. They had also attacked his wife with wooden sticks, resulting in a fractured leg that required medical treatment.　 His brother-in-law had reported the matters to police, but they took no action against those people because SMS had bribed them. He had to flee Pakistan for his safety.

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/2025/HCAL001709_2025_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 Notice of Decision dated 27 February 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. 　On 28 April 2025, the Board conducted an oral hearing via the remote official visit system as he was being detained in Tai Tam Gap Correctional Institution for his appeal. He had given oral evidence and answered the Board’s questions.

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

(1)  It did not believe the applicant’s story because it is illogical and far-fetched. [72]

(2)  It did not accept his evidence that the higher authorities would not protect him because they sided with SMS and he had no connection with them. [73]

(3)  He did not seek protection immediately after arriving in Hong Kong, which would damage his credibility. [74]

(4)  He had produced false document as proof of his identity, which also damaged his credibility. [75]

(5)  It considered relocating to Faisalabad or Multan would be viable for the applicant. [124]

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

11.The applicant has filed Form 86 dated 31 July 2025 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised the following grounds in support of his application:

(1)  The Board did not allow him time to obtain documents in support of his claim.

(2)  He had shown the Board his injuries, but the Board did not call for professional for its determination. 　This is unfair.

(3)  He did not have much legal preparation for the appeal, which will be taken as having no legal assistance for his appeal.

(4)  His enemies had killed his parents and sisters.　 They had attempted to shoot him as well. The Board should have taken all into account.

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.

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.As to the grounds raised in paragraph 12, ground (1) fails as the Board did not accept his evidence not because of lack of documents in support, but the inconsistencies and contradiction in his evidence. Ground (2) and ground (4)  fail because the assessment of the evidence is within the province of the Board.　 The Board did not reject his evidence because there was no medical evidence to prove his injuries. Ground (3) fails as he is not entitled to free legal assistance at all stages of the proceedings.[1]

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 16^th day of October 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