Qaisar Mehmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1818/2020

[2025] HKCFI 4863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1818 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 7 July 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 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 is an illegal immigrant, having entered Hong Kong illegally on 10 November 2019.  He was arrested. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his girlfriend’s uncle (“the uncle”) because his girlfriend’s family does not approve the relationship.  The uncle had sent people to attacked him with weapons many times in Pakistan and threatened to kill him.

5.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/HCAL001818_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.By way of Notice of Decision dated 3 February 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 June 2020, the Board conducted an oral hearing for his appeal.  At the hearing, the applicant refused to answer the Board’s questions in relation to his story in support of his claim.  He said that he was feeling not well mentally, but he did not seek medical attention.  The adjudicator explained to him that in the circumstances, he would proceed with the hearing. Upon questions put to him, he said that he understood, but he would not answer them and would only rely on his statement in the hearing bundle.  The Board assessed his appeal on the evidence available before it.  [29]-[32]

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

(1)  The Board did not believe his evidence in view of lack of explanation on the issues, which the Board intended to clarify with the applicant.  [34]

(2)  The Board did not consider the applicant faced a real risk of Proscribed Harm from his girlfriend’s family if he is refouled to Pakistan.  [35]

10.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 14 September 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.

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.Under section 37ZA of the Immigration Ordinance, Cap.115 (“the Ordinance”), the applicant has a duty to disclose all material facts in support of his claim.  Under section 37ZD, the Board can take into consideration the applicant’s non-disclosure of information in determining his credibility.  The Board was therefore entitled to take the view as it did and disbelieved the applicant’s evidence in this case.

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 30^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