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HCAL 945/2020
[2025] HKCFI 1946
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 945 OF 2020
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BETWEEN
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Shamran |
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 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 and filed on 21 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 14 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/HCAL000945_2020_files/the_Board's_Decision.pdf
2. The Board found that none of the applicable grounds under the Unified Screening Mechanism (“the USM”) was established by the applicant. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 September 2018, which rejected the applicant’s claim for non-refoulement protection, and the Board affirmed the Director’s said decision.
3. However, the applicant had previously lodged a torture claim under Part VIIC of the Immigration Ordinance (“the Torture Claim”), which was rejected by the Director on 15 January 2014. The applicant did not appeal against that decision. Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with the remaining 3 grounds under the USM namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3].
Amendments
4. The applicant wrongly spelt the Board’s full name as the putative respondent and also named the Board as the putative interested party in Form 86, when the Director should be the putative interested party. 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
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 as he feared that he would be ill-treated by his girlfriend’s family and the Pakistani police and his life would be in great peril should he return to Pakistan, as his girlfriend’s family opposed to their relationship and the applicant was suspected to have killed one of his girlfriend’s brothers.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 8 May 2025.
8. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
9. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
10. 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).
11. The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020. The applicant merely stated in the affirmation that he was not satisfied with the Board’s Decision, as he could not go back to his country at this moment because his life was not safe there, and that he liked to stay in Hong Kong until his problem was solved.
Discussion
12. 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).
13. In assessing the applicant’s appeal, the Board held an oral hearing on 20 January 2020, and the applicant was present. Hence, the applicant did have the opportunity to present all his evidence or proof to the Board. The Board found that the risk of suffering any ill-treatment due to his relationship with his girlfriend was minimal because his relationship with her had gone in all probability. The applicant had lost contact with his girlfriend since 2007 and did not even know if she was married. He did not suffer any harm from the people whom he believed were sent by his girlfriend’s family.
14. Furthermore, the Board considered that the applicant’s own worry that the police had accepted bribe from his girlfriend’s family to ill-treat him was not founded upon any credible evidence. The fact that he could leave the country without any difficulty indicated to the Board that his girlfriend’s family did not bribe the police as claimed, otherwise he would have encountered difficulty in leaving the country. Hence, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan.
15. While noting from reliable country of origin information that there were defects and corruption in Pakistan, it was clear that the government had been taking practical steps to address the problem and exercised due diligence in according due protection to its citizens. The applicant’s fear that state protection was not available to him was his mere speculation. He had never even tried to seek government protection in Pakistan. The Board was satisfied that the Pakistani government was willing and able to afford a reasonable level of protection to the applicant should he be refouled.
16. In assessing the viability of internal relocation for the applicant, the Board found that being an able-bodied young adult with 4 years of work experience, the applicant would be able to relocate to other districts such as Islamabad or Faisalabad without any undue hardship.
17. 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 no reason to usurp the fact-finding power vested in the Board.
18. Although the Board did not re-assess the Torture Claim, it was unnecessary to consider the same, as the Director had already considered and refused the Torture Claim, and the applicant did not appeal against that decision.
19. 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.
20. 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
21. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of May 2025
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( Thomas Chan )
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 16/5/2025
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: 16/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13443/18/9/204/P2650
Director of Immigration
Putative interested party’s ref. no.: QA T/C 3012/18 (formerly as RBCZ 2002219/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.
[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.
[3] 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.
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