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HCAL 431/2022
[2025] HKCFI 181
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 431 of 2022
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BETWEEN
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Muhammad Yasir |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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 (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion.
2. Leave to the applicant to withdraw the Leave Application; and
3. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 6 June 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office ("Board") dated 23 May 2022 (" Board's Decision") dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 26 August 2021 (" Director's Decision") rejecting the applicant's non-refoulement claim.
2. In Form 86, the applicant named the Director as the proposed respondent. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
Background
3. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
4. The applicant is a national of Pakistan. He claimed that he had entered Hong Kong illegally on 8 September after he was arrested by the police on 15 September 2020. On the same day of 16 September 2020 when he was referred to the Immigration Department, he lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by members of Tehreek-e-Labbaiq, a religious Sunni organization, which was antagonistic to Shia Muslims of which the applicant was a member.
5. The Director decided against the applicant’s claim on all applicable grounds. The Director found that there were no substantial grounds for believing that there would be any real risk of him being harmed by the Sunni religious groups of people. The Director was also satisfied that both state protection and the option of internal relocation were viable. Hence, the applicant’s appeal to the Board.
6. The applicant attended a hearing before the Board on 9 November 2012. The Board did not consider the applicant faced a real risk of harm from members of the Sunni group. It further concluded that there was reasonable and viable internal relocation available to the applicant. The Board rejected the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
7. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
8. In the Form 86, the applicant set out a number of proposed grounds of appeal in Enclosure (2). In his supporting affirmation of the same date, the applicant only exhibited the Board’s Decision and deposed that the decisions were unlawful as they failed to take into account the dangers and risks of his life. The grounds stated in the Form 86 are in fact a mere repetition of the various risks covered in his re-foulement application. They did not condescend to particulars. The applicant has failed to identify any arguable error of law by the Board, any relevant matter that he had failed to consider or any other reason why the Board’s Decision was wrong.
9. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge his burden of proving the asserted fears and risks.
10. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
Withdrawal of Leave Application
11. On 19 November 2024, the applicant filed an affirmation to apply to withdraw the Leave Application.
12. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
13. We were recently informed by the Director that the applicant had been removed from Hong Kong. We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.
Order
14. The Form 86 is amended on the court’s own motion.
15. Leave to the applicant to withdraw the Leave Application.
16. The Leave Application be dismissed.
Dated the 3rd day of January 2025.
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( Allen 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 to the Applicant
on 3/1/2025
Muhammad Yasir
Applicant’s ref. no:
Nil. |
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Sent 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 3/1/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18707/21/9/59/P3524
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 354/21 (Formerly RBCZ 10813/20)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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