WALI UMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3878/2019

[2025] HKCFI 1288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3878 OF 2019

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 in open court;

1.  On this court’s own motion and with the applicant’s confirmation, the decision in respect of which relief is sought as stated in Form 86 be amended to “Torture Claims Appeal Board’s decision dated 13 December 2019”.

2.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

3.  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 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 26 July 2017, but the Torture Claims Appeal Board ("the Board") did not give any decision on that day, nor did the Director of Immigration (“the Director”).

2.  The Board gave only 2 decisions in respect of the applicant’s case, one is dated 9 March 2017 (“the Board’s 1^st Decision”) and the other 13 December 2019 (“the Board's 2^nd Decision”). Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003878_2019_files/Board's_1^st_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003878_2019_files/Board's_2^nd_Decision.pdf

3.  In the Board’s 1^st Decision, the Board considered the applicant’s claim for non-refoulement protection based on 3 applicable grounds under the Unified Screening Mechanism (“the USM”), namely:-

(1)  Risk of Torture under Articles 1 and 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2)  Risk of Harm under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 Risk”); and

(3)  Risk of Persecution on the principles in Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.  The Board decided that the applicant failed to establish a case for non-refoulement whether under the principles of Torture Risk, BOR 3 Risk or Persecution Risk. Hence, the Board dismissed the applicant’s appeal against the Director’s decision dated 19 November 2015, and confirmed the Director’s said decision.

5.  On 14 June 2017, the Director, on his own initiative, decided to canvass the issue of risk of loss of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”), and so invited the applicant to submit within 14 days any further materials for consideration. However, the applicant did not produce any further material.

6.  On 29 June 2017, the Director determined that the applicant did not establish a case under BOR 2 Risk. The applicant appealed against the Director’s dismissal of his BOR 2 Risk claim to the Board on 13 July 2017.

7.  In the Board’s 2^nd Decision, the Board dismissed the applicant’s appeal regarding BOR 2 Risk, and confirmed the Director’s decision on 29 June 2017.

8.  In the Leave Application, the applicant requested for an oral hearing and it was held on 4 March 2025. The applicant was present at the hearing and was assisted by an Urdu interpreter. When this court asked the applicant to confirm in respect of which decision he was applying for leave to judicial review, the applicant confirmed that it is the Board’s 2^nd Decision and not the Board’s 1^st Decision.

Amendments

9.  In view of the applicant’s confirmation at the hearing, the decision in respect of which relief is sought as stated in Form 86 is amended to “Torture Claims Appeal Board’s decision dated 13 December 2019” on this court’s own motion.

10.  In Form 86, the applicant named the Director as both the putative respondent and the putative interested party, when the Board should be the putative respondent. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

11.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male national of Pakistan aged 39 at the time when the Board’s 2^nd Decision was made. He grew up in Village Saleh Khana in Khyber Pakhtunkhwa, Pakistan, but moved to Peshawar City in 2012 to stay with his in-laws. He did not receive any formal education.

(2)  The applicant claimed that he arrived in China on 11 May 2012 and immediately sneaked into Hong Kong illegally. He was arrested by the Hong Kong police on 13 May 2012.

(3)  On 15 May 2012, the applicant lodged with the Director a torture claim which was expanded to include non-refoulement protection on the aforesaid 3 grounds, namely Torture Risk, BOR 3 Risk and Persecution Risk.

(4)  The applicant claimed that if refouled, he would be harmed or killed by a gangster extortionist named Akhtar (“Ak”), who is the applicant’s distant relative. The applicant alleged that around 2009, his brother Qamar lent money to Ak, but when Qamar wanted to get back the money from Ak, Ak refused to repay the loan to Qamar. Ak then proceeded to harass and threaten the applicant’s family with death.

(5)  As a result of that, the applicant relocated to various places in Pakistan. When he was in Pabbi, he was detained by the Pabbi police for 6 days because he was accused to have been searching for and intending to harm Ak. However, he was not charged nor required to report back to the police.

(6)  From Pabbi, he went to Peshawar City to stay with his friend Niaz. One day when he was in a jungle in Village Kotlay Kalan, he saw Ak with 2 police officers, and Ak shouted for him to stop, followed by firing two shots which hit his left shoulder.

(7)  The applicant then moved to stay with his in-laws in Matani. He left Pakistan and flew to China on 11 May 2012.

Grounds for judicial review

12.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.  The applicant did not advance any ground for his intended judicial review in Form 86, but in his supporting affirmation dated 30 December 2019, he stated that, “I never had applied my claim to Appeal Board and not help my oral hearing or I did not get any decision from TCAB”.

14.  It seems that the applicant is relying on the grounds that: (1) he did not apply for appeal to the Board; (2) no oral hearing was held; and (3) he did not get any decision from the Board, for his intended judicial review.

Oral hearing

15.  At the oral hearing on 4 March 2025, apart from confirming that the Board’s 2^nd Decision is the decision in respect of which relief is sought by way of the Leave Application, the applicant had nothing further to say.

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.  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.

18.  The applicant’s complaints are only bare assertions and have no substance. It is utterly untrue that he had never appealed to the Board. He filed his first appeal with the Board on 1 December 2015 against the Director’s first decision dated 19 November 2015. He also filed his second appeal with the Board on 13 July 2017 against the Director’s second decision dated 29 June 2017.

19.  For the first appeal, there was an oral hearing arranged for the applicant to attend, but he failed to attend. The Board’s staff also made due effort to try to contact the applicant to remind him of the oral hearing but in vain.

20.  For the second appeal, the applicant did not respond to the Director’s request for additional evidence concerning his non-refoulement claim on all the applicable grounds under the USM, including BOR 2 Risk. Thus, the applicant did not provide any new evidence to the Board. The Board considered that there was no further question for the applicant, as all the issues under BOR 2 Risk were abundantly clear. The Board therefore decided that there was no need or justification to arrange yet another oral hearing merely to re-canvass the same facts that had already been analysed previously.

21.  The Board is entitled to hold no oral hearing pursuant to paragraph 12 of Schedule 1A of the Immigration Ordinance, Cap 115. This court finds nothing wrong for the Board to make that decision based on the materials before it and when the Board was satisfied that the appeal could be justly determined without a hearing.

22.  This court notes that there was an undated letter sent by the applicant to the Immigration Department which was received by the Removal Assessment and Litigation (Operations Support) Section on 26 July 2017 and attached to the applicant’s supporting affirmation dated 30 December 2019 and marked as exhibit “A”. As stated in the letter, it served as a formal notification to the Immigration Department that the applicant applied for “Protection under Art.2 of the Hong Kong Bill Of Rights Ordinance relating to the right against being arbitrarily deprived of life”. In other words, the applicant was applying for protection in relation to BOR 2 Risk.

23.  This letter was sent after the applicant had already lodged the second appeal to the Board against the Director’s dismissal of the applicant’s claim for BOR 2 Risk (ie on 13 July 2017) and before the Board made the Board’s 2^nd Decision (ie on 13 December 2019). The alleged formal notification does not serve any real purpose, as the applicant had already lodged the second appeal.

24.  More importantly, there was no new evidence enclosed in this letter, which required the Board to have any additional consideration for the applicant’s case. Thus, this undated letter cannot affect the Board’s 2^nd Decision in any way at all.

25.  In the premises, the applicant’s alleged ground of no oral hearing cannot be established and has no realistic prospects of success.

26.  As to the allegation that the applicant did not receive any decision from the Board, the applicant did not mention any factual background nor produce any evidence to support this claim. In any event, whether the applicant received the decisions or not was something happened after the decisions were made and cannot be a ground to challenge the validity of the decisions.

27.  It is not the applicant’s allegation that the Board did not make any decisions, and even if it is, the Board’s 1^st Decision and the Board’s 2^nd Decision are clearly in existence. Thus, the applicant’s allegation that he did not receive the Board’s decisions cannot be a ground for the intended judicial review.

28.  Having dealt with the applicant’s grounds for the intended judicial review as aforesaid, and for the sake of completeness, the court will still examine and scrutinize the Board’s decisions for any error of law, procedural unfairness and irregularities. In assessing the applicant’s second appeal, the Board relied on the finding of facts and the evidence before it in the first appeal. It is therefore prudent and in the interest of justice for this court to examine both the Board’s 1^st Decision and the Board’s 2^nd Decision.

29.  In determining the first appeal, the Board carefully assessed and analysed all the evidence before him, including those matters asserted by the applicant and an abundance of reliable and the then updated country of origin information (“COI”). The Board found that the alleged gunshot incident and the applicant’s alleged injury lacked credibility and were completely unsupported by evidence. The loan involved was not even taken out from the applicant but from his brother. There was no logical basis for Ak to be wanting to kill the applicant.

30.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to extensive COI for the applicant’s country from different sources. The Board considered that the applicant should be able to obtain assistance from state authorities if he needed it. Further, the Board did not accept Ak would be interested in locating the applicant all over Pakistan, even assuming he had the resources and manpower to do so. The Board thus concluded that the applicant could safely relocate to other places within Pakistan without undue hardship. The first appeal was therefore dismissed by the Board after due consideration of the law and evidence.

31.  The applicant did not submit any further evidence to the Board for consideration of his second appeal. He only stated in his Notice of Appeal that his life was still in danger, he had been in Hong Kong for long and it was difficult for him to obtain proof that was demanded, and that he had almost no conversation or contact with his relatives. He only asked the Board to reconsider his case.

32.  In dealing with the second appeal, the Board considered the applicant’s risk of life and found that he did not succeed in establishing his case under BOR 2 Risk. As mentioned above, there was no new evidence to be analysed, and hence there is nothing wrong for the Board to make that conclusion. In Kulwinder Kaur v Director of Immigration [2022] HKCA 48, the Court of Appeal held that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”. This is the same situation here. As the Board had already found that there was no BOR 3 Risk, there is no arguable ground for BOR 2 Risk either. Thus, there can be no reasonably arguable claim based on BOR 2 Risk.

33.  Having rigorously examined the Board’s 1^st Decision and the Board’s 2^nd 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 both decisions.

34.  Both decisions also satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

35.  For reasons aforesaid, the Leave Application 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