NADEEM MUHAMMAD ARIF v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 777/2020

[2025] HKCFI 3789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 777 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 1^st putative respondent be amended to “Torture Claims Appeal Board”, the name of the 2^nd putative respondent be amended to “Director of Immigration”, the name of the putative interested party be amended to “Director of Immigration”, the 1^st decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 31 July 2018”, and the 2^nd decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 April 2020”.

2.  The applicant’s application for leave to apply for judicial review in respect of Director of Immigration’s decision dated 31 July 2018 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 16 April 2020 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 27 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “Decion of Immigration Proceeding in respect of which relief is sought”; and

(2)  “Determination of Appeal Board/Petition with a Hearing issued by the Torture Claims Appeal Board / Non-refoulement Claims petition Office dated 16 April, 2010 (14-Pages in total)”.

2.  The Director of Immigration (“the “Director”) made a decision dated 31 July 2018 (“the Director’s Decision”) to reject the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

3.  The applicant filed a Notice of Appeal/Petition against the Director’s Decision on 9 August 2018.

4.  The Torture Claims Appeal Board (“the Board”) made a decision on 16 April 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the Director’s Decision.

5.  The applicant annexed a copy of the Director’s Decision and the Board’s Decision to his supporting affirmation dated 27 April 2020. Thus, it is clear that decisions which the applicant intended to apply for judicial review in the Leave Application are in respect of the Director’s Decision and 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/HCAL000777_2020_files/the_Board's_Decision.pdf

6.  The Board found that the applicant had shown no grounds for non-refoulement protection either on the basis of torture risk[1] under the Immigration Ordinance, BOR 3 Risk[2], BOR 2 Risk[3], or on the basis of the risk of persecution[4] under the USM. The Board thus dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

Amendments

7.  The applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the 1^st putative respondent and “Director of Immigration Hong” as the 2^nd putative respondent in Form 86, when only the Board should be named as the 1^st putative respondent and the Director should be named as the 2^nd putative respondent.

8.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

9.  Further, the applicant named “Torture Claims Appeal Board / Non-Refoulem Non-refoulement Claims Petition Office” as the 1^st putative interested party and “Director of Immigration” as the 2^nd putative interested party in Form 86, when only the Director should be so named.

10.  Thus, on this court’s own motion, the name of the 1^st putative respondent is amended to “Torture Claims Appeal Board”, the name of the 2^nd putative respondent is amended to “Director of Immigration”, and the name of the putative interested party is amended to “Director of Immigration”.

11.  As aforesaid, the decisions in respect of which relief is sought in the Leave Application should be the Director’s Decision and the Board’s Decision. Thus, on this court’s own motion, the decisions in respect of which relief is sought in the Leave Application is amended to “Director of Immigration’s decision dated 31 July 2018” and “Torture Claims Appeal Board’s decision dated 16 April 2020”.

The intended judicial review in respect of the Director’s Decision

12.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

13.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Pakistan, he would be at risk of being killed by his wife’s cousin called Nazar, who was a police inspector. The reason for Nazar’s hostility was because the applicant had refused Nazar’s request to convert from the Sunni sect of Islam to the Shia sect.

Grounds for judicial review

16.  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).

17.  The applicant did not advance any ground for his intended judicial review in Form 86. The applicant merely stated in his supporting affirmation dated 27 April 2020 that he was not satisfied with the decision of the Director and the Board.

Discussion

18.  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).

19.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

20.  In assessing the appeal by the applicant, the Board held an oral hearing on 19 November 2019. Hence, the applicant did have a chance to present his case to the Board in person.

21.  The Board did not accept that the applicant’s claimed problems were caused by differences over religion. The Board rejected the applicant’s suggestion that there was a hostile campaign directed against him by Nazar and other members of his wife’s family. The Board did not accept that Nazar’s threat was genuine, or the incident in Peshawar in 2012, when the applicant alleged to have been shot at but escaped, did happen.

22.  After due consideration of the law and the applicant’s evidence, the Board concluded that the applicant was not at any continuing risk from Nazar, any member of his wife’s family or indeed anyone in the way that he complained or at all.

23.  The Board found that none of the applicable grounds under the USM was applicable to the matters that the applicant raised.

24.  Despite the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it went on to assess the viability of internal relocation for the applicant. The Board found the applicant’s claims that Nazar was influential with connections all over Pakistan as well as to the Pakistan Muslim League (Nawaz) were vague and unsupported by any evidence other than his own speculation. The Board agreed with the Director’s conclusion that as an able-bodied person with good education and ample work experience, the applicant could live and work in other places in Pakistan such as Islamabad and Lahore. Hence, the Board found that reasonable and practical internal relocation option was available to the applicant, even if any threat existed.

25.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

26.  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.

27.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

28.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision 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