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HCAL 331/2020
[2025] HKCFI 2701
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 331 OF 2020
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BETWEEN
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Raza Ali |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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 “Director of Immigration” be added as the putative interested party.
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 6 March 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 10 January 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/HCAL000331_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The applicant’s petition was dismissed and the decision of the Director of Immigration (“the Director”) dated 29 January 2018 (“the Director’s Decision”) was confirmed.
3. Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed. The applicant had previously lodged his non-refoulement claim based on Torture Risk on 23 October 2013 but withdrew the same two days later on 25 October 2013.
Amendments
4. In Form 86, the applicant incorrectly named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent. The correct putative respondent should only be the “Torture Claims Appeal Board”. The “Non-refoulement Claims Petition Office” is just an office providing administrative and secretariat support to the adjudicators of the Torture Claims Appeal Board, and should not be named as a putative respondent at all.
5. The applicant did not name any putative interested party in Form 86.
6. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
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 was at risk of being harmed or killed by members of the Pakistan Muslim League (N) if he were to return to Pakistan, as he worked for the Pakistan People’s Party as a volunteer worker by putting up posters and recruiting people to join the party. He also canvassed for votes and promoted the party, but he did not join the party formally because he was in fear that the opposition party might target him.
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. The applicant did not identify any grounds for the intended judicial review. He merely stated in his supporting affirmation dated 6 March 2020 that he was not satisfied with the decision of the Immigration, and his life was still in danger in his home country Pakistan.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application. His case was heard on 10 April 2025.
12. The applicant said that he wanted to get proof such as photos and First Information Reports (“FIR”) from the police in Pakistan to support his case. He did not know how those materials could assist his case, but he was asked by the Immigration to produce them.
13. The applicant also said that his father was murdered in 2017 by the opposition party. He came to know about this in 2017 when he was in prison. When asked why he did not tell the Board about it at the Board’s hearing in 2019, he replied that he had no knowledge that he had to tell the Board about it.
Discussion
14. 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).
15. Thus, it is not for this court to receive new evidence from the applicant to re-assess the non-refoulement claims afresh. His failure to produce proof such as photos or FIR and to supply information about the alleged murder of his father by the opposition party for the Board’s consideration is not a valid ground to challenge the Board’s Decision. The applicant has the duty to supply to the Board all the evidence for its consideration. There was nothing wrong for the Board in not considering matters that were not within its knowledge. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
16. In fact, the applicant only told the Board that his father passed away in 2017, but he did not say that his father was murdered. According to what the applicant told this court, he knew in 2017 that his father was murdered when he was in prison. It defies common sense that he would have failed to inform the Board about the murder of his father at the Board’s hearing on 8 October 2019.
17. The applicant was given the opportunity to present his case and all the evidence to the Board at the oral hearing on 8 October 2019 and the applicant was present. It was incredible for the applicant to say that he had no knowledge that he had to tell the Board about the murder of his father.
18. In fact, it was also incredible, as found by the Board, for the applicant to claim that he was responsible for the recruitment of members when he was not even a member of the Pakistan People’s Party and did not know the procedures for joining the party.
19. Having considered the applicant’s testimony and all the evidence with due care, the Board found the accounts given by the applicant implausible and that he was a highly untrustworthy and evasive witness. The Board therefore concluded that the applicant would not be subjected to any BOR 2 Risk, BOR 3 Risk or Persecution Risk, if refouled.
20. 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 all the applicable grounds (except Torture Risk) under the USM.
21. It was not necessary for the Board to deal with Torture Risk as it was withdrawn by the applicant on 25 October 2013. Moreover, when the applicant was informed of the decision of the Director that upon his own application, his torture claim was finally determined, the applicant did not file an appeal against that decision. Thus, the applicant’s Torture Risk had already been finally disposed of.
22. The Board also found that the applicant would be able to access state protection, but it was not necessary to consider internal relocation as the applicant did not have a well-founded fear of persecution in his own homeland. 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).
23. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
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 error 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. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of July 2025
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( Irene LEE )
for Registrar, High Court
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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 the applicant’s solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on 2 July 2025
Applicant’s ref. no:
Nil |
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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: 2 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10247/18/2/131/P1976
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2649/17 (formerly RBCZ 2001334/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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 persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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