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HCAL 3677/2019
[2025] HKCFI 1140
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3677 of 2019
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Butt Mudassar Bashir |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 10 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 13 September 2019 (the “Board’s Decision”).
2. In the Form, the Applicant has not named the Director of Immigration (the “Director”) as the proposed interested party. Pursuant to the usual practice, I make an order to amend the Form by adding the Director as the proposed interested party on the court’s own motion.
3. The Applicant had requested for an oral hearing for the application. The hearing took place on 4 March 2025 and the Applicant attended in person. The Applicant however indicated that he had no submission to make, apart from those stated in the supporting Affirmation. He further indicated that he had already submitted all the documents he wanted to submit, and had no further document to adduce.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.
Discussion
5. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
6. In the Form, the Applicant has not provided any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply stated that he was not satisfied with the Board’s Decision and that his life would still be in danger if he returns to his country.
7. I have considered the Board’s Decision in details. I note that the Board dismissed the Applicant’s petition on the basis that what the Applicant had stated under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (the “HKBORO”) (the “BOR2 Risk”) had already been dealt with by the Board in the earlier decision dated 12 May 2017 (the “Earlier Board’s Decision”) (hyperlink to the Earlier Board’s Decision is included below[2] for reference). As such, the Board dismissed the petition on the basis of res judicata (see paragraph 10 of the Board’s Decision).
8. The Earlier Board’s Decision was decided on all applicable grounds including:-
(a) Risk of torture under Part VIIC of the Immigration Ordinance (Cap. 115);
(b) Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the HKBORO; and
(c) Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
9. On the face of it, the Board had not assessed the same facts under BOR2 Risk in the Earlier Board’s Decision. As such, it may not be correct to dismiss the petition under the doctrine of res judicata. However, noting that the factual basis relied on by the Applicant for the assessment of the BOR2 Risk was the same as those under his previous petition before the Board (which resulted in the Earlier Board’s Decision), and further noting the factual findings of the Board in the Earlier Board’s Decision, it is clear that the Applicant’s claim under BOR2 Risk is also bound to fail. In the circumstances, I refuse to exercise my discretion to grant leave for judicial review to the Applicant in relation to the Board’s Decision as it would be academic to remit the decision back to the Board for reconsideration, even if there was error committed by the Board in this regard (see Re Abakwam Obinna [2022] HKCA 1835, at §19).
10. Subject to what I have stated above, I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.
Conclusion
11. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 27th day of March 2025
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(Seline Sze) |
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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 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 to the Applicant
on 27/03/2025
Butt Mudassar Bashir
Applicant’s ref. no:
Nil |
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Sent 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 27/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1259/15/3/179/P397
BOR 652/17/5/152/P181
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 600/08 (formerly RBCZ/305/08)
RBCZ 9001637/17 (Formerly QA T/C 600/08, RBCZ/305/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003677_2019_files/the_Board's_Decision.pdf
[2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003677_2019_files/Earlier_Board's_Decision.pdf
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