KHAN ASAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 30 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.

The applicant                         

3.  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 6 robbers, whom he had reported to police and identified in an identification parade.

4.  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/HCAL001364_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of Notice of Decision dated 5 March 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 14 February 2025, the Board conducted an oral hearing for his appeal.  He was represented by a duty lawyer before the Board. He had given oral evidence and answered the lawyers’ and the Board’s questions.

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

(1)   If he is summoned to stand as a witness in court to testify against the robbers, he may refuse to do so.  It is for the court to make a fair and just decision on this issue.  The court may make order for witness protection.  His allegations that the police was corrupt or may collude with the robbers to do him harm is only his speculation without any credible evidentiary support. [121]

(2)   For the reasons above, the applicant has no real risk of harm if he returns to Pakistan. [127]

9.  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

10.  The applicant has filed Form 86 dated 13 June 2025 for leave to apply for judicial review of the Board’s Decision.

11.  In support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

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

14.  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.”

15.  It is clear that the applicant was fully protected before the Board as he has a duty lawyer to act for him.  The Director was also legally represented. The Board had fully considered legal submissions from both parties and the facts of the case.  

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

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.

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