|
HCAL 974/2020
[2025] HKCFI 3667
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 974 OF 2020
| BETWEEN |
|
|
|
Nadeem Akhtar |
Applicant |
|
and
|
|
|
Director of Immigration |
1st Putative Respondent |
|
Torture Claims Appeal Board
|
2nd Putative Respondent |
|
and
|
|
|
Director of Immigration
|
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 26 September 2014 and the decision of the Torture Claims Appeal Board dated 12 May 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 26 September 2014 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 12 May 2020 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 22 May 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 26 September 2014 (“the Director’s 1st Decision”); and
(2) “The Decision of the Adjudicator dated 12th May 2P020”.
2. The decision dated “12th May 2P020” was in fact be made by the Torture Claims Appeal Board (“the Board”) on 12 May 2020 (“the Board’s 2nd Decision”) in respect of the applicant’s appeal/petition against the Director’s decision dated 6 February 2017 (“the Director’s 2nd Decision”).
3. The applicant had previously lodged a Notice of Appeal/Petition against the Director’s 1st Decision on 9 October 2014, which was rejected by the Board’s decision date 6 August 2015 (“the Board’s 1st Decision”).
4. The Director’s 1st Decision and the Board’s 1st Decision were dealing with the applicant’s claim for non-refoulement protection based on Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).
5. The Director’s 2nd Decision and the Board’s 2nd Decision were dealing with the applicant’s claim for non-refoulement protection based on BOR 2 Risk[4] under the USM.
6. Only the Board’s decisions are reviewable by judicial process and not the Director’s decisions, 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 1st Decision was superseded by the Board’s 1st Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
7. The applicant’s application for leave to apply for judicial review in respect of the Director’s 1st Decision is therefore dismissed.
8. This court will further consider the Leave Application in respect of the Board’s 2nd Decision as discussed below.
9. Both the Board’s 1st Decision and the Board’s 2nd Decision can be viewed in the following hyperlinks:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000974_2020_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000974_2020_files/2nd_Board's_Decision.pdf
10. In the Board’s 2nd Decision, the Board found the applicant failed to establish, even to the low standard applicable, that there was a real risk, or a real chance, that he would be arbitrarily deprived of his life if he was expelled or removed to Pakistan. Hence, the Board dismissed the applicant’s appeal/petition against the Director’s 2nd Decision and confirmed the same.
Amendments
11. 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.
12. 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.
13. This court notes that the adjudicator, Mr Ian Candy, signed the Board’s 2nd Decision as “Adjudicator of Non-refoulement Claims Petition Office”. This is a wrong description of his capacity as only members of the Board can determine non-refoulement claims, not the Non-refoulement Claims Petition Office. However, as Mr Candy was indeed a member of the Board, the wrong description of his capacity will not nullify the Board’s 2nd Decision.
14. Thus, on this court’s own motion, the name of the 2nd putative respondent is amended to “Torture Claims Appeal Board”.
15. 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.
16. As aforesaid, the applicant is seeking leave to apply for judicial review in respect of the Director’s 1st Decision and the Board’s 2nd 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
17. 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 1st Decision and the Board’s 2nd Decision, which can be viewed in the hyperlinks above.
18. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk of ill-treatment from his step-uncle named Jamshad due to the land dispute between Jamshad and the applicant’s father.
Withdrawal at the oral hearing
19. The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 August 2025.
20. However, the applicant applied to withdraw the Leave Application at the hearing. The reason he gave for the withdrawal application was that it would be safe for him to return to Pakistan as his problem there had been solved.
21. 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.
22. 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.”
23. 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
24. 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).
25. The applicant did not advance any ground for judicial review in Form 86. He annexed a document to his supporting affirmation dated 22 May 2020 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
26. 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 2nd Decision was superseded by the Board’s 2nd Decision and is no longer susceptible to judicial review, the Director’s 2nd Decision cannot be the subject matter of the Leave Application.
27. This court will therefore consider only those grounds directed at the Board in respect of the Board’s 2nd Decision.
28. Paragraphs 2, 3 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 2nd Decision in paragraph 1 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 failed to give him sufficient time and chance to arrange relevant evidence, etc.
29. 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”.
30. Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s 2nd Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
31. The applicant seemed to suggest that the Board failed to give him sufficient time and chance to arrange relevant evidence. In fact, it was the applicant who failed or chose not to submit further information for assessment of his non-refoulement claim based on his BOR 2 Risk when invited by the Director. He did not submit any new information relevant to his claim for non-refoulement protection under BOR 2 to the Board either. There is simply no substance in this ground.
32. 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).
33. Thus, this court will examine and scrutinize the Board’s 2nd 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.
34. In assessing the applicant’s appeal, the Board decided that an oral hearing was not necessary as the applicant did not submit any new information relevant to his claim for non-refoulement protection under BOR 2. All his evidence had been duly considered by the Board in its assessment of the applicant’s claim in the Board’s 1st Decision.
35. After re-assessing the applicant’s evidence as a whole, the Board found no reason to alter its earlier decision concerning the general credibility of the applicant, which was set out in the Board’s 1st Decision, namely that there was no credible evidence that any of the incidents to which the applicant referred actually occurred. The applicant had failed to establish, even to the low standard required, that he suffered and would suffer any ill-treatment at the hands of Jamshad and others.
36. The Board therefore concluded that it was not persuaded that the applicant had established that there was a real risk that he would be arbitrarily deprived of his life if refouled to Pakistan.
37. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to reach its decision. The applicant’s alleged danger in his home country had indeed been duly assessed by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
38. Having rigorously examined the Board’s 2nd 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 2nd Decision. The Board’s 2nd Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
39. In fact, in view of the applicant’s confirmation at the oral hearing before this court that it would now be safe for him to return to Pakistan, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.
40. 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
41. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application in respect of both the Director’s 1st Decision and the Board’s 2nd Decision is dismissed.
Dated the 19thday of August 2025
| |
(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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
19 August 2025
Applicant’s ref. no:
Nil
|
|
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.:
BOR 147/17/2/56/P46
USM 313/14/10/30/P94
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 9001347/16
(Formerly RBCZ 99/08)
QA T/C 388/08 Pt.2
(formerly RBCZ 99/08) (T7I33)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
[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 principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
[4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383
|