SHABIR HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 864/2020

[2025] HKCFI 5536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 864 OF 2020

Application for leave to apply for judicial review

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

Following:

1.  On this court’s own motion, “Shabir Hussain” be added as the applicant’s name, 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 9 April 2020”. 

2.  The applicant’s application to re-open 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 11 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 9 April 2020 without identifying the decision maker.

2.  The applicant omitted to put his name in Form 86.  However, as stated in his supporting affirmation dated 11 May 2020, the applicant’s name is “Shabir Hussain”.

3.  The Torture Claims Appeal Board (“the Board”) made a decision dated 9 April 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 February 2017 (“the Director’s Decision”).

4.  It is clear that the date of the decision that the applicant put in Form 86 is the date of the Board’s Decision, and hence the Leave Application should be in respect of 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/HCAL000864_2020_files/the_Board's_Decision.pdf

5.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’ Decision, which rejected his non-refoulement claim.

Amendments

6.  As aforesaid, the applicant omitted to put his name in Form 86. Thus, on this court’s own motion, “Shabir Hussain” is added as the applicant’s name.

7.  The applicant named the Director and the Board as both the putative respondents and the putative interested parties in Form 86 but spelt the Board’s name wrong.

8.  In fact, only the Board should be the putative respondent and only the Director should be the putative interested party.

9.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

10.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 9 April 2020”.

Withdrawal of the Leave Application and subsequent application to re-open the Leave Application

11.  By way of an affirmation dated 5 January 2022, the applicant applied to this court to withdraw the Leave Application because all his problem had finished, his mother was very sick and he wanted to go back to his country Pakistan as soon as possible.

12.  Accordingly, DHCJ P Li made an order on 7 January 2022 that the Leave Application be withdrawn.

13.  Nevertheless, the applicant sent a letter dated 30 December 2024 to this court and applied to re-open the Leave Application, stating that he had problem in his country.

14.  Before the applicant’s application to re-open the Leave Application was dealt with, by a letter dated 21 August 2025, the Director informed this court that the applicant had been removed on 2 May 2025.

15.  As the applicant’s application to re-open the Leave Application has not been dealt with, this court will deal with it despite the removal of the applicant.

16.  Although DHCJ P Li had ordered that the Leave Application be withdrawn, there was no dismissal of the Leave Application.

17.  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.”

18.  Thus, it is not right to leave the action at large.  This court will proceed to determine the merits of the Leave Application.

The applicant’s case

19.  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.

20.  In sum, the applicant claimed for non-refoulement protection because as a Shia, he feared being harmed by the Sunni group in his village if he was refouled to Pakistan.

Grounds for judicial review

21.  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).

22.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 May 2020.  He merely stated in the affirmation that he was facing some serious trouble in his home country.

23.  As aforesaid, the applicant applied to re-open his Leave Application, stating that he had problem in his country.  However, the applicant did not provide any particulars on the problem he had.

Discussion

24.  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).

25.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

26.  In assessing the appeal by the applicant, the Board held an oral hearing on 16 January 2020.  The applicant was present and was represented by a duty lawyer.  Hence, the applicant had been given the chance to present his case to the Board with legal assistance.  The Board carefully examined his evidence and questioned the applicant for details.

27.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims.  Simply put, the Board did not find the applicant’s account credible.  Even taking his account at its highest, there was no real risk that the applicant would be subjected to serious harm on his return to Pakistan.  None of the applicable grounds under the USM was established.  Furthermore, state protection would be available to the applicant and internal relocation was a viable option for him. 

28.  This court notes that the Board had given detailed reasons why it rejected the applicant’s claim of deficient memory, why it rejected the applicant’s assertion that the Director should have arranged a medical examination for him and why the Board did not adjourn the hearing and order a medical examination for him.  The Board believed that the applicant’s claim to have poor memory as a result of the attack on him by the Sunni group in his village was but a convenient excuse to avoid answering difficult questions at the interview with the immigration officer and at the Board’s hearing.  The applicant did not produce any medical proof despite claiming that he had been hospitalised for 1.5 months and subsequently sought further treatment from a private clinic after the attack.

29.  The Board found the applicant’s claim that the Sunni group, which only made disruptions during the Shia meetings and ended in “arguments and minor scuffles”, would suddenly want to kill him, made no sense.  The applicant was not a leader of the Shia group in his village.  The only incident where the applicant claimed to be attacked was not even a personal attack, but part of a fight between the two groups with aggression on both sides.  The Board did not accept that he came to Hong Kong due to a fear for his life and safety.

30.  As to the applicant’s risks on the applicable grounds under the USM, the Board found the Sunni group in his village were private individuals and were non-state actors.  The applicant failed to prove the requirement of state acquiescence within the definition of torture in section 37U of the Immigration Ordinance.  The applicant did not face a real risk of arbitrary deprivation of life, torture and ill-treatment.  There was no factual basis to establish a well-founded fear of persecution on the applicant’s return to Pakistan.

31.  Although it was not necessary to make findings on internal relocation given its findings as summarized above, the Board did find internal relocation was a viable option for the applicant.  The applicant also accepted that as a skilled craftsman, he could return to Pakistan and live in villages and cities where the Shia was in the majority.  The Board found that it was not unduly harsh or unsafe for the applicant to relocate to other parts of Pakistan.

32.  Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

33.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

34.  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. 

35.  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.

36.  Thus, there is no merits in the Leave Application at all.  There is also no reason for this court to allow the applicant to re-open his case when it is doomed to fail.

Conclusion

37.  For reasons aforesaid, the applicant’s application to re-open the Leave Application is refused and 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