|
HCAL 1154/2021
[2025] HKCFI 6048
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1154 OF 2021
|
BETWEEN
|
| |
Iqbal Javed |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. 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 16 August 2021, 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 August 2021 (“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/2021/HCAL001154_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board rejected his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 December 2020 (“the Director’s Decision”), which rejected his non-refoulement claim, and confirmed the same.
Amendments
3. In Form 86, the applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties.
4. In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed, ill-treated or killed by people whom he believed were affiliated with the Pakistan Tehreek-e-Insaf party (“PTI”), on the basis of his affiliation with and support of the Pakistan Muslim League - Nawaz party and his refusal to switch allegiance to PTI.
Withdrawal of the Leave Application
8. Before the Leave Application was dealt with, the applicant filed an affirmation dated 25 June 2025 to withdraw the Leave Application.
9. As stated in the applicant’s affirmation, he wanted to go back to his country so he wanted to withdraw his judicial review, and he would go home as soon as possible. However, he did not state that it was safe for him to go back to his home country.
10. There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.
11. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
12. Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.
Grounds for judicial review
13. 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).
14. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 16 August 2021. He merely stated in the affirmation that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.
Discussion
15. As can be seen from the Board’s Decision, the applicant’s “dangerous situation” had already been duly assessed but rejected by the Board. If the applicant seeks to challenge the Board’s finding of facts, it is not permissible in a judicial review.
16. 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).
17. 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.
18. In assessing the applicant’s appeal, the Board held an oral hearing on 30 June 2021. The applicant was present and had the opportunity to present his case to the Board in person.
19. After due consideration of the evidence and the oral testimony of the applicant, the Board found that there was no, or no reliable evidence to show that (1) the applicant himself came under any threat as a personal target of PTI; (2) the applicant faced risk throughout Pakistan; (3) the applicant suffered injuries to the required severity; and (4) the state of Pakistan was unwilling to help the applicant for a Convention reason.
20. The Board found that even if the applicant had been targeted in relation to his political opinion, there was no evidence that the PTI people had been backed by the state or its officials. The Board found that the PTI people who attacked him were non-state actors and as such, there was no Convention reason for his ill-treatment, if any. The Board also found from extensive country of origin information (“COI”) that various avenues appeared to be accessible to the applicant and state protection would be available to him. The applicant’s claim based on Persecution Risk[1] thus failed.
21. Based on its findings, the Board also found that the applicant did not face a genuine risk of being ill-treated under BOR 3 Risk[2] or otherwise being subjected to arbitrary deprivation of life under BOR 2 Risk[3]. State acquiescence was lacking, and the applicant had failed to satisfy the elements of torture as defined in section 37U of the Immigration Ordinance. Hence, his claim for non-refoulement protection based on Torture Risk[4] also failed.
22. Given its findings, it was not strictly necessary for the Board to assess the viability of internal relocation for the applicant. However, the Board did do so as a matter of caution. The Board found that the applicant’s assertion that the PTI people could locate him outside his home area was only his speculation. The applicant, being an able-bodied mature male with 28 years of work experience both in Pakistan and Korea, could safely relocate without undue hardship to cities which were sufficiently distant from his home area so that chances of the PTI people travelling so far to personally target him would be further reduced.
23. The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The applicant’s alleged danger in his home country had indeed been duly assessed by the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.
24. 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.
25. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
26. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 9th day of December 2025
| |
(Irene LEE)
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
9 December 2025
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
9 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17497/20/12/56/P3406
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 507/20
(formerly RBCZ 40/20) (T2S4)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
|