Chand Gill v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 133/2021

[2025] HKCFI 6366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 133 of 2021

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:

1.  The Order dated 11 November 2025 be set aside; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The Order dated 11 November 2025 pursuant to Form CALL-1 of the same date (“the previous Order”) is set aside under Order 32, rule 6 of the Rules of the High Court (“RHC”), to be replaced by this Form CALL-1 because of the reasons below. See also The Court of Appeal in Re Cu Van Duc [2024] HKCA 641, Hon Chu VP and Au JA, 30 July 2024.

(1)  This Court made the previous Order because the applicant applied for leave for judicial review of the Director’s Decision, without informing the Court that he had appealed to the Torture Claims Appeal Board (“the Board”).

(2)  After the previous Order was issued, the Court received a letter from the Board dated 19 November 2025, informing us that the applicant had, in fact, appealed the Director’s Decision to the Board, which had dismissed his appeal by Decision dated 12 January 2021 (“the Board’s Decision”), a copy of which was enclosed with the said letter.

(3)  In the circumstances, this Court has to exercise its discretion under Order 32, rule 6 of the RHC to set aside its previous Order.

(4)  This Court will, on its own motion, amend Form 86 to rectify the error, so that the applicant’s application may be re-assessed without the applicant taking out another application against the Board.

2.The applicant now applies for leave to apply for judicial review of the Board’s Decision dated 12 January 2021 (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

3.The applicant did not ask for a hearing.

4.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, the Director of Immigration is the interested party, and the decision in respect of which relief is sought is the Board’s Decision.

The applicant

5.The applicant is a national of Pakistan. He is an illegal immigrant and was arrested on 2 March 2012. He lodged a torture claim on 9 March 2012, which the Director rejected on 18 July 2012. He lodged a Supplementary Claim Form for non‑refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by a person called Cheema because he had endorsed a loan agreement, by which his friend borrowed money from Cheema. His friend then ran away without repayment and Cheema demanded him to pay the loan. He was unable to make repayment. Cheema had assaulted him.

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/2021/HCAL000133A_2021_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 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”);

b.  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

c.  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 28 August 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on the applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. Pursuant to section 12 of Schedule 1A of the Ordinance, the Board decided that the appeal should be justly disposed of on the papers without a hearing.

10.Having considered the evidence before it, the Board made the findings below.

(1)  It was not satisfied that there is a real risk that the applicant will suffer any harm from Cheema or his associates if he returns to Pakistan. [38]

(2)  The above conclusion was based on the finding that Cheema would not continue to pursue the applicant for the money over a period of 20 years; coupled with the fact that the applicant did not borrow the money himself. The applicant’s claims and evidence in relation to his fears are entirely speculative and without basis. [42]

11.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

12.The applicant has filed Form 86 dated 5 February 2021 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

19.The previous order is set aside.

20.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 22^nd day of December 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