NAWAZ SHAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 936/2020

[2025] HKCFI 2789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 936 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 oral submissions by the applicant or counsel in open court;

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 for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 15 May 2020 and filed on 19 May 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 12 May 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/HCAL000936_2020_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (‘the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 14 January 2020.

Amendments

3.  In Form 86, the applicant named “Torture Claim Appeal Board” and “Immigration Department” as the putative respondents, and named “Torture Claim Appeal Board (IMMD)” as the putative interested party. In fact, only the Board should be the putative respondent and only the Director should be the putative interested party.

4.  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”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because he feared harm arising from his support for Jamiat Ulema-e-Islam-Fazl’s (“JUI-F”), a religious political party, and his dispute with a Mr M, the district president of the ruling Pakistan Tehreek-e-Insaf (“PTI”), as the applicant, while preaching, had criticized the failure of the Pakistani government to control inflation.

Grounds for judicial review

6.  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).

7.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation filed on 19 May 2020. He only stated in the affirmation that he did not agree with the Board’s Decision, and he could not go back to his country because his life would be in danger in Pakistan.

Discussion

8.  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).

9.  Thus, despite that the applicant has failed to advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

10.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 April 2020 and conducted a rehearing afresh. The applicant was present and chose to adopt the information from the hearing bundle. The Board questioned and discussed with the applicant his non-refoulement claim, and the applicant was given the chance to make submissions to the Board.

11.  After due assessment of the oral evidence, the written statements and credible country of origin information (“COI”), the Board found the applicant to be only a low-level supporter of JUI-F and COI did not indicate supporters of JUI-F were targeted for harm. Thus, the Board found that the applicant, if refouled, would not face a real risk of any proscribed harm as a result of his support for JUI-F.

12.  Regarding the applicant’s risk from Mr M, the Board accepted that Mr M did make the accusation against the applicant, assault and threaten the applicant. However, the Board considered there to be only a remote or speculative risk and therefore not a real risk that Mr M would do more than making future empty threats against the applicant or that Mr M and his supporters would instigate any escalation of violence against the applicant and his supporters.

13.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant would not face any real risk arising from his support for the JUI-F nor from Mr M. Thus, the Board reached the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

14.  As to the viability of relocation, the Board correctly considered that internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). Since the applicant had failed to establish a real risk of proscribed harm in his home area, the Board did not find it necessary to consider the viability for the applicant’s internal relocation.

15.  Thus, the Board did consider the danger and threats the applicant would face in his country should he be refouled, but found that there was no such real risk.

16.  The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal. This court finds nothing wrong in the way the Board reached its decision.

17.  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.

18.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

19.  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