BHATTI GHULAM ABBAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1977/2020

[2025] HKCFI 5193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1977 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.  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 30 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 4 September 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001977_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds (other than Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 26 July 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

3.  The applicant had previously raised a torture claim in 2009, and the Director rejected his torture claim on 6 February 2014. The applicant did not appeal against that decision. Thus, the applicant’s Torture Risk had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by a man named Munir and his two companions, who were supporters of the Pakistan Muslim League (Nawaz) (“PML-N”), over a land dispute.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 12 August 2025.

7.  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.

8.  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

9.  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).

10.  However, the applicant did not assert any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 September 2020.

Discussion

11.  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).

12.  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 valid ground being advanced by the applicant for the intended judicial review.

13.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 9 September 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

14.  Having considered all the evidence, the Board found the applicant’s claims unreliable and lacking in credibility, as it found multiple significant inconsistencies and discrepancies in the details presented by the applicant at different times.

15.  In relation to the alleged land dispute, the applicant was inconsistent with: (1) the size of the disputed land; (2) the identity of the people who wanted his land; (3) his relationship with Munir; (4) whether Munir and his companions were associated with PML-N; (5) the time when the alleged land dispute started; (6) how the land dispute began; and (7) whether he sought assistance from village heads to resolve the dispute.

16.  As to the alleged threats and past harm from Munir and his companions, there were multiple discrepancies as to: (1) whether and how the applicant went to his friend Nadeem’s office/factory and was attacked; (2) whether and when he went to Karachi; (3) whether he was located by Munir in Karachi; (4) the frequency of Munir’s visits to his home to look for him and his brothers; (5) whether his brothers also faced harm from Munir; and (6) whether court case(s) were filed in respect of the disputed land, etc.

17.  The applicant told the Board that he would be able to produce court documents relating to the land dispute and was given time to do so after the Board’s hearing, but no such documentation had been provided to the Board as at the date of the Board’s Decision, which was more than one whole year after the hearing.

18.  The Board’s findings as summarised above led to the Board’s refusal to accept the following:-

(1)  the applicant fled Pakistan for the reasons he claimed;

(2)  the applicant had been involved in a land dispute with Munir and his companions;

(3)  Munir and his companions approached the applicant in 2001 or at any other time and demanded his land;

(4)  Munir had falsely obtained the applicant’s signature and claimed that he had paid money for the applicant’s land;

(5)  Either the applicant or Munir had filed any court cases in relation to the land dispute;

(6)  Munir and his companions attacked the applicant in Sialkot or that they ever threatened the applicant, his brothers or his nephews over the land; and

(7)  The applicant fled to Karachi to escape from Munir or that Munir followed him to Karachi.

19.  Given the Board’s findings as summarized above, the Board considered that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan.

20.  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.

21.  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).

22.  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.

23.  The assessment of evidence 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 or unreasonable in the way the Board reached its conclusion.

24.  For the sake of completeness, this court noticed that the adjudicator of the Board, Ms Magdalena Wysocka, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of her capacity.

25.  Ms Wysocka was a member of the Board and she was determining the applicant’s petition in her capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to her. She was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

26.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

27.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms Wysocka was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name herself as an adjudicator of the Non-refoulement Claims Petition Office.

28.  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.

29.  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

30.  For reasons aforesaid, the Leave Application is dismissed.

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