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HCAL 341/2020
[2025] HKCFI 2705
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 341 OF 2020
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BETWEEN
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Ali Azmat |
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 9 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 24 February 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/HCAL000341_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 8 August 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
3. However, 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 Director had previously assessed Torture Risk and rejected the same on 29 January 2013. The applicant did not appeal against that decision.
Amendments
4. The applicant named “FISHER Paul Stephen Adjudicator of the Non-refoulement Claims Petition Office” as the putative respondent and the Board as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and does not have any power to determine the applicant’s appeal/petition at all. The adjudicators were in fact making the Board’s decisions on behalf of the Board in their capacity as members of the Board, not the Non-refoulement Claims Petition Office.
6. This court noticed that Mr Fisher signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office.
7. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
8. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Fisher was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name the Non-refoulement Claims Petition Office as a party in the Leave Application.
9. 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
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because he feared being killed by a man named Javed and his gangster group called Billa who wanted his family’s land.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 10 April 2025.
13. The applicant simply reiterated the claims that his brother and cousin were killed in 2005 and his father was killed in 2012. He thought that he would be killed as well if returned to Pakistan. He also thanked the Hong Kong Government for protecting him and he wanted to continue to stay in Hong Kong.
Grounds for judicial review
14. 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).
15. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 9 March 2020. What he said at the oral hearing did not amount to any ground either.
Discussion
16. 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).
17. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
18. In assessing his appeal, the Board held an oral hearing on 29 October 2019 and the applicant was present. The Board was in fact satisfied that the applicant would face a real risk of being subjected to serious or significant harm if he were refouled to his home village in Pakistan.
19. However, the Board considered that there was no evidence, other than the applicant’s bare assertion, that the Billa group was known or operated beyond the vicinity of the applicant’s former home. Hence, the Board found that the applicant could safely avoid the harm feared by relocating to Lahore, where the rest of his family resided, or indeed to other places in Pakistan such as Karachi, which would not be unduly harsh in all the circumstances.
20. Thus, the Board rejected the applicant’s claim for non-refoulement protection based on the feasibility of internal relocation. When internal relocation is feasible, there is simply no justification to afford the applicant with non-refoulement protection in Hong Kong (see TK v Jenkins & Anor [2013] 1 HKC 526).
21. Although the Board’s Decision did not deal with Torture Risk, it was unnecessary to do so as the same was rejected by the Director on 29 January 2014 and the applicant did not appeal against that decision.
22. 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.
23. 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
24. 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 his 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 13035/18/8/305/P2542
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1001/13 (formerly RBCZ/2249/09)
QA T/C 2581/18 (formerly as RBCZ 2002732/14)
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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