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HCAL 309/2020
[2025] HKCFI 2711
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 309 OF 2020
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BETWEEN
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Akram Nasim |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative |
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Respondent |
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Director of Immigration |
2nd 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 1st 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 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 Director of Immigration’s decision dated 6 November 2018 be dismissed.
4. The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 23 January 2020 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 15 February 2020 and filed on 5 March 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”) without identifying the date; and
(2) the decision of the Torture Claims Appeal Board ("the Board") dated 23 January 2020 (“the Board's Decision”).
2. There was only one decision made by the Director in respect of the applicant’s non-refoulement claim and it was dated 6 November 2018. Thus, the applicant must be referring to the Director’s decision dated 6 November 2018 (“the Director’s Decision”) in the Leave Application.
3. However, 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 (see Re Moshsin Ali [2018] HKCA 549).
4. Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision must be dismissed.
5. This court will only consider the Leave Application in respect of 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/HCAL000309_2020_files/the_Board's_Decision.pdf
6. The Board found that the applicant’s claims for non-refoulement protection were not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision.
Amendments
7. The applicant wrongly named the Board/Non-refoulement Claims Petition Office as the 1st putative respondent, and the Board/Non-refoulement Claims Petition Office and Immigration Department as the putative interested parties in Form 86.
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 party at all. The Director should be the putative interested party instead of the Board/Non-refoulement Claims Petition Office and Immigration Department.
9. Thus, this court makes an order on its own motion to amend the name of the 1st 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 would face harm from Raja Safder (“Raja”), a councillor of Village Ratwa from the Pakistan Muslim League (Nawaz), due to a land dispute, if he were refouled to Pakistan.
Withdrawal at the oral hearing
12. The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 April 2025. However, the applicant told this court that he had already applied to the Immigration Department to withdraw the Leave Application.
13. The Director did not inform this court about the applicant’s withdrawal application before the hearing. Thus, this court treated the applicant as making the withdrawal application orally at the hearing. The reason he gave for the withdrawal application was that it is now safe for him to return to his own country.
14. 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.
15. However, 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.”
16. Thus, it is right for this court to deal with the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. It is just not right to leave the action at large by granting leave to withdraw to the applicant.
Grounds for judicial review
17. 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).
18. The applicant did not identify any ground for the intended judicial review in Form 86 or at the oral hearing. The applicant asserted in his supporting affirmation dated 5 March 2020 a number of complaints which can be summarised as follows:-
(1) Neither the Director nor the Board took into account the applicant’s unique situation fairly and sequentially.
(2) The applicant believed that the Board was biased and made its determination based on many assumptions without allowing him an opportunity to explain or elaborate, especially when the Board was challenging his credibility.
(3) The applicant elected not to give any answers at the oral hearing, but the Board should have made enquiries with the applicant or given the applicant an opportunity to clarify the issues that formed the reasons for rejecting his case.
(4) The applicant was not provided with proper legal and language assistance. The determination of the appeal/petition was not read to him in his own language. He believed that such failure in providing proper assistance to non-refoulement claimants was procedurally unfair.
Discussion
19. 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).
20. Most of the grounds raised by the applicant are very general, vague and without any specificity. At the oral hearing before this court, the applicant did not provide any further particulars to support his grounds, but chose to withdraw the Leave Application instead.
21. The applicant did not say what unique situation of his that the Board had failed to take into account fairly and sequentially. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. In particular, the Board had carefully considered the applicant’s claims as included in his Notice of Claim Form, the record of interview before the Immigration Department, his Notice of Appeal/Petition and his oral evidence given at the oral hearing before the Board on 10 December 2019. Thus, the Board did consider the applicant’s case very thoroughly.
22. The applicant was present at the oral hearing before the Board and was given the chance to present his case and grounds of appeal to the Board in person. In fact, at the hearing, the applicant gave a significantly and fundamentally different account of the land dispute from his previous evidence in all aspects. The Board carefully examined the two different accounts and the discrepancies thereof and questioned the applicant for details. It is therefore utterly untrue that the Board did not make any enquiry with the applicant or give the applicant the opportunity to explain or clarify such issues.
23. It was also not true that the applicant had elected not to give any answers on the day of the oral hearing. In fact, the applicant gave very significant and fundamentally different answers in his evidence at the oral hearing. Hence, the Board’s Decision was not made on assumptions as alleged by the applicant. The mere fact that the Board did not believe the applicant cannot be regarded as a biased act towards him.
24. As to the allegation that there was a lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in his proceedings before the Director. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
25. Likewise, it is trite that the high standard of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). Thus, the applicant’s allegations that he did not know how his case was determined and hence it was not easy for him to appeal against the decision and that no one read the determination of the appeal/petition to him in his own language simply cannot help him.
26. Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.
27. 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.
28. 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
29. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed in respect of both the Director’s Decision and the Board’s Decision.
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 the applicant’s 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 14455/18/11/298/P2882
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4000/18 (Formerly RBCZ 10965/16 (T8I46))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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