Mughal Tajammal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1240/2020

[2026] HKCFI 425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1240 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 applied to the Director of Immigration (“the Director”) for non-refoulement protection. The Director had issued 2 decisions, viz. Notice of Decision dated 29 January 2015 (“the Director’s 1^st Decision”) dismissing his claim on Torture risk, BOR 3 risk and Persecution risk; and Notice of Further Decision dated 28 March 2017 (“the Director’s 2^nd Decision”), dismissing his claim on BOR 2 risk. They are called “the Director’s Decisions”.

2.The applicant appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 2 March 2017 (“the Board’s 1^st Decision”) and another Decision dated 8 May 2020 (“the Board’s 2^nd Decision”), the Board dismissed his appeals on all the applicable risks. 

3.The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision.

4.Since the Board had relied on the same facts in the Board’s 1^st Decision for the Board’s 2^nd Decision, I shall take into consideration of the Board’s 1^st Decision in this application.

5.The applicant asked for a hearing. However, he was absent at the hearing on 12 January 2026, I shall deal with his application on the papers.

6.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

7.The applicant is a national of Pakistan. He is an illegal immigrant. 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 enemy Rashid and his gang members because he had a verbal conflict with him during a cricket match in September 2006.

8.Details of his claim are set out in the Board’s 1^st Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001240_2020_files/the_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 the Director’s Decisions, the Director refused the applicant’s claim because it was unsubstantiated.

The Board’s Decisions

The Board’s 1^st Decision

11.The applicant appealed the Director’s 1^st Decision to the Board.  On 30 October 2015, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

12.Having considered the evidence, the Board made the findings below.

(1)   There are a number of areas of conflict between his written statements and his evidence at the oral hearing. [42]

(2)   It has been over 8 years [from 2017] since the applicant left Pakistan, it is unlikely that his enemy would continue to harass him. [58]

(3)   State protection will be available if he returns to Pakistan. [55]

(4)   Internal relocation is viable. [58]

13.For the reasons above, the Board dismissed his appeal and affirmed the Director’s 1^st Decision.

The Board’s 2^nd Decision

14.The applicant appealed the Director’s 2^nd Decision to the Board. The Board did not hold an oral hearing for it.  The Board considered the evidence and held that the applicant failed to establish BOR 2 risk if he returned to Pakistan. The Board therefore dismissed his appeal and affirmed 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 19 June 2020 for leave to apply for judicial review of the Board’s Decision.

16.In support of his application, the applicant did not raised any specific ground to challenge the Board’s 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 Decision should be examined with rigorous examination and anxious scrutiny.

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.The applicant has raised no valid ground to challenge the Board’s 2^nd Decision.

21.In any event, the Court of Appeal held that since he failed in his BOR 3 risk claim, he has no arguable case for BOR 2 risk[1].

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

DISPOSITION

23.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 28^th day of January 2026

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