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HCAL 1569/2020
[2025] HKCFI 3674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1569 OF 2020
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Muhammad Umer |
Applicant |
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and
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board
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2nd Putative Respondent |
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and
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Director of Immigration
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Putative 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 2nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decisions in respect of which relief is sought be amended to “The decision of the Director of Immigration dated 8 May 2018 and the decision of the Torture Claims Appeal Board dated 18 June 2020”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 8 May 2018 be dismissed.
4. The applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 18 June 2020 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 28 July 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) the decision of the Director of Immigration (“the Director”) dated 8 May 2018 (“the Director’s Decision”); and
(2) “The Decision of the Adjudicator dated 18th June 2020”.
2. The Decision of the Adjudicator dated 18 June 2020 (“the Board’s Decision”) was in fact made by the Torture Claims Appeal Board (“the Board”) in respect of the applicant’s appeal/petition against the Director’s Decision.
3. Only the Board’s decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. Thus, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
4. The applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is therefore dismissed.
5. This court will further consider the Leave Application in respect of the Board’s Decision as discussed below.
6. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001569_2020_files/the_Board's_Decision.pdf
7. In the Board’s Decision, the Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision accordingly.
Amendments
8. The applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2nd putative respondent in Form 86. In fact, the Adjudicator should be determining the applicant’s appeal/petition in his capacity as a member of the Board.
9. 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.
10. Thus, on this court’s own motion, the name of the 2nd putative respondent is amended to “Torture Claims Appeal Board”.
11. Moreover, the applicant did not name any putative interested party in Form 86, when the Director should be so named. Hence, the Director is added as the putative interested party on this court’s own motion.
12. As aforesaid, the applicant is seeking leave to apply for judicial review in respect of the Director’s Decision and the Board’s Decision in the Leave Application. Hence, this court makes an order on its own motion to amend the decisions in respect of which relief is sought accordingly.
The applicant’s case
13. 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.
14. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he, being a member of the Pakistan Tehreek-e-Insaf (“PTI”), would be at risk of being harmed or killed by a person called Munir, a member of the opposition political party, Pakistan Muslim League (Nawaz), as he had problems with Munir.
Withdrawal of the Leave Application
15. By his latest affirmation dated and filed on 10 February 2025, the applicant made an ex parte application for leave to withdraw the Leave Application. The applicant stated in the affirmation that he wanted to withdraw his judicial review because he wanted to go back to his home country. He further stated that his problem had already been solved, his life would be safe there and he had no problem in his home country.
16. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.
17. The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
18. Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.
Grounds for judicial review
19. 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).
20. The applicant annexed a document to his Form 86 with the title “Grounds on which Relief is sought”. Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.
Discussion
21. First of all, some of the grounds stated in the document with the title “Grounds on which Relief is sought” were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review, the Director’s Decision cannot be the subject matter of the Leave Application.
22. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
23. Paragraphs 2 and 4 of the said document are directed at the Director and can be simply ignored. The remaining grounds that were advanced against the Board’s Decision in other paragraphs of the said document were all very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as the Board’s Decision was wrong, unreasonable and unfair as required by the Wednesbury test, the Board was procedurally improper and unfair, the Board had placed too much reliance on country of origin information (“COI”), etc. It does not help the applicant to establish any ground by just mentioning the right to life in the first paragraph of the said document either.
24. In any event, the Board did assess the applicant’s risk of right to life. The Board found that there was no real risk to the applicant’s life and no prospect that he would face torture or cruel, inhuman or degrading treatment or punishment.
25. The applicant also alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.
26. In any event, this allegation is plainly untrue as the applicant did not attend the hearing before the Board and was not questioned by the Board at all.
27. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
28. Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
29. 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).
30. 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.
31. The applicant was afforded an oral hearing before the Board on 22 April 2020. From the heading of the Board’s Decision, it seems that the applicant was present at the hearing because it mentioned that the applicant was acting in person. However, according to paragraphs 3, 13 and 14 of the Board’s Decision, the Board mentioned that the applicant did not appear at the hearing and did not provide any explanation for two main areas of enquiry, as well as other areas, about his claim. The Board therefore proceeded to decide the applicant’s appeal/petition on the basis of the evidence before it.
32. It seems to this court that the Board had made a mistake in the heading of the Board’s Decision in indicating that the applicant was acting in person when he was actually absent at the hearing, as can be seen in paragraphs 3, 13 and 14 of the Board’s Decision.
33. In any event, the Board explicitly stated that it had given “the most anxious scrutiny” to the issues in the applicant’s appeal/petition and where possible, the Board resolved any doubts as to the evidence in the applicant’s favour. The apparent mistake in the heading of the Board’s Decision does not affect the contents of the Board’s Decision. It is clear that the Board did consider all the evidence before it.
34. The Board gave detailed analysis and reasoning for its conclusion that the applicant was not at a real risk of ill-treatment, torture, arbitrary deprivation of life and persecution. The Board also found the applicant’s claim that the authorities were unable or unwilling to protect him as fanciful, as the ruling party in Pakistan was in fact the PTI of which the applicant was a member. The Board also concluded that it would be viable and reasonable for the applicant to relocate to another part of Pakistan if he did not wish to return to his home area. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
35. 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.
36. Thus, there is no merits in the Leave Application at all.
37. Moreover, as the applicant had confirmed by way of his affirmation dated 10 February 2025 that his problems had been solved and his life would be safe in his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.
38. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).
39. Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v. Secretary for Security and Another (2012) 15 HKCFAR 743).
40. It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.
Conclusion
41. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 19thday of August 2025
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(Irene LEE)
for Registrar, High Court |
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:
19 August 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: 19 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11657/18/5/242/P2261
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1178/18 (Formerly RBCZ/10030/18 (PSO))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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