ZAB SHAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 590/2020

[2025] HKCFI 3561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 590 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 May 2019”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 9 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of “the decision of Torture Appeal Board and Immigration Department 02/05/2019”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 2 May 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 25 November 2014 (“the Director’s 1^st Decision”) and 30 November 2016 (“the Director’s 2^nd Decision”) respectively. Thus, it is clear that the Leave Application is in respect of the Board’s Decision, not the Immigration Department’s decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000590_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed both the Director’s 1^st Decision, which rejected the applicant’s claim for non-refoulement protection on Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], and the Director’s 2^nd Decision, which rejected the applicant’s claim for non-refoulement protection on BOR 2 Risk[4].

Amendments

4.  In Form 86, the applicant named “Torture Claim Appeal Board and Immigration Department” as both the proposed respondents and the putative interested parties, when the putative respondent should only be the Board and the putative interested party should only be the Director.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

6.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 2 May 2019”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be (1) targeted by gangs operating in his local area Gujarat City; (2) targeted by Pakistani police in Gujarat who had framed him and asked him for bribes; and (3) harmed by supporters of Pakistan Muslim League or the Quaid e Azam Group (“PMLQ”).

Late application

9.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

10.  However, the applicant filed Form 86 on 9 April 2020, which was more than 11 months after the Board’s Decision (made on 2 May 2019). The applicant was hence late for more than 8 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

11.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

12.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

13.  A delay of more than 8 months is substantial and there is no justification for the delay. Moreover, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the Board’s Decision.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 15 July 2025.

16.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

17.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 9 April 2020. The applicant merely stated in the affirmation that he did not agree with the Board’s Decision, he could not go back to his home country and his life would still be in danger over there.

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

21.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

22.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 8 April 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board.

23.  As can be seen from the Board’s Decision, the Board gave very detailed analysis of the applicant’s case and noted the applicant’s self-confessed use of illicit drugs in Hong Kong and the passage of time, which might explain the difficulties in the applicant’s preparation of his claims and his memory issues. However, the Board found that these issues still could not account for the number of considerable inconsistencies in the applicant’s case.

24.  Having considered the applicant’s claims, both individually and cumulatively, the Board did not accept that the applicant was of any current or ongoing interest to the Pakistani authorities, police forces, supporters of PMLQ, any gangs operative in his home area or anybody else in Pakistan. The Board therefore found that the applicant did not face a real or substantial risk of torture, ill-treatment, arbitrary deprivation of life or persecution if refouled to Pakistan.

25.  Thus, the applicant’s alleged danger to his life upon return to his home country had been duly considered but rejected by the Board.

26.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

27.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

29.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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