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HCAL 372/2020
[2025] HKCFI 4206
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 372 OF 2020
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Muhammad Nawaz |
Applicant |
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and
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Torture Claims Appeal Board
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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 putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
2. 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 and filed on 11 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 January 2020 (“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/HCAL000372_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant had shown no grounds for non-refoulement protection based on any BOR 3 Risk[1], BOR 2 Risk[2] or Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 30 July 2018 and confirmed the same.
3. The applicant made a CAT claim[4] previously in 2013, which was rejected by the Director on 30 August 2013. The applicant did not file any appeal against that refusal. Thus, the applicant’s Torture Risk[5]had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.
Amendments
4. The applicant named both the Board and the Director as the proposed respondents in Form 86 but spelt the Board’s name wrong. He did not name any putative interested party.
5. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if returned to Pakistan, his life would be in danger from the family of his deceased girlfriend Tania (“the Razwi family”) and he faced arrest for her murder even though he was innocent.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. His case was heard on 17 July 2025.
10. At the hearing, the applicant said that he had proof in videos, newspaper and from the TV but he needed time to obtain the evidence and referred to a letter that he received in July 2025. However, he told this court that the new evidence he referred to all happened after the Board’s Decision.
11. The applicant also said that he came to Hong Kong in 2002 or 2003 and as updated by his neighbor, his condition was the same as in 2002 or 2003. He further said that it was not the right condition for him to return to Pakistan, as his mother and brother had passed away.
Grounds for judicial review
12. 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).
13. However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 March 2020. He merely stated in Form 86 that he needed the court’s help as his life would be in danger in his country. In his supporting affirmation, he just stated that he had problems in Pakistan and he did not want to go back.
14. As aforesaid, the applicant did not advance any valid ground at the oral hearing before this court. He only wanted more time to obtain evidence for matters that happened after the Board’s hearing, which allegedly would support his non-refoulement claim, and alleged that his condition remained the same as in 2002 or 2003.
Discussion
15. First of all, if the applicant intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
16. Further, as held in Nupur Mst v Director of Immigration[2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
17. Thus, the applicant cannot rely on matters that happened after the Board’s Decision to challenge the same.
18. 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, supra).
19. 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.
20. In assessing the appeal by the applicant, the Board held an oral hearing on 20 November 2019. The applicant was present and was given the chance to present his case to the Board in person.
21. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion that the problems applicant feared were simply his imagination. The Board found that there was no genuine threat to the applicant in the way he claimed or at all from the Razwi family or the police or indeed anyone, and that he would not be at any form of risk in the event of his return to Pakistan.
22. The applicant’s claim that he would be at risk from the Razwi family was only based on what he had heard from his friend Hameed who in turn was repeating what he had been hearing around the village. The applicant had taken no steps to enquire whether the rumours that his girlfriend was killed and he was accused of murdering her were true. He had not heard any firsthand information about the girlfriend’s death. There was in fact no evidence that his girlfriend was dead. The police did not approach him over the matter. The applicant could apply for his passport without any hindrance before he left Pakistan. Indeed, the sole source of his fear derived only from a single conversation with Hameed that he had before he left Pakistan over 17 years ago.
23. The Board also noted that the applicant did not seek protection from the Hong Kong authorities until 5 years later after he came to Hong Kong and only when he was arrested and sentenced. The Board found the applicant’s explanation that he did not know that he could make such a request before his arrest untenable, bearing in mind that his stated purpose in coming to Hong Kong was for his protection. The lengthy delay in seeking protection seriously undermined the applicant’s credibility.
24. Despite its finding that the applicant did not face any of the proscribed forms of harm, the Board nevertheless assessed the viability of internal relocation for the applicant. The Board found that it was open to the applicant to move away from his home village and relocate to another area of Pakistan upon his return. Indeed, the applicant had no contact with his family since leaving Pakistan in 2002, and the applicant claimed that his family had disowned him. There was absolutely no reason for him to return to his previous home. The applicant’s fear that the Razwi family might be able to find him wherever he might choose to live in Pakistan was not supported by any credible evidence. The Board shared the Director’s view that metropolitan areas such as Karachi or Islamabad would be a suitable location for the applicant to move to if there was any risk to him.
25. Thus, the applicant’s alleged danger in returning to Pakistan was fully assessed but rejected by the Board.
26. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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. 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 applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16thday of September 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: 16 September 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:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12910/18/8/180/P2512
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1743/18
(formerly RBCZ/2001305/14) [T5 S135]
QA T/C 483/10
(formerly RBCZ 731/07)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 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.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] CAT is the abbreviation for the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Claims for non-refoulement protection under Article 3 of CAT used to be handled by the Immigration Department under an administrative screening mechanism prior to the implementation of the statutory scheme under Part VIIC of the Immigration Ordinance, Cap 115.
[5] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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