WASIM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3886/2019

[2025] HKCFI 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3886 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 or counsel in open court;

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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 30 December 2019, 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 18 December 2019 (“the Board's Decision”), which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003886_2019_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant did not make out his application for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 19 July 2018.

The applicant’s case

3.  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 born in Gujranwala, Punjab, Pakistan in 1980. He received 5 years of formal education and ran a mobile phone business from 1998 to 2014 before he left his home country.

(2)  The applicant claimed that he entered Hong Kong illegally by boat on 5 January 2015 and surrendered to the immigration authorities on 11 March 2015.

(3)  The applicant claimed that he would be harmed or killed by a person named Muhammad Munir (“Munir”) if he were to be sent back to Pakistan, because he witnessed the murder of his friend Bashir Jaral by Munir. Munir had beaten him up and also threatened to kill him after he reported the matter to the local police.

(4)  The applicant made his first non-refoulement claim to the Director on 29 July 2015. He submitted a Non-refoulement Claim Form dated 21 May 2018 to the Director of Immigration and was interviewed by an immigration officer on 13 July 2018. His claim was then rejected by the Director on 19 July 2018.

Grounds for judicial review

4.  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).

5.  However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019. He merely stated in his affirmation that he is an illiterate man, cannot read or write English and it is impossible for him to understand the law. He also stated that his problem is true and made a bare allegation that the Board did not properly do their job.

Discussion

6.  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).

7.  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.

8.  Since the applicant did not advance any specific ground for the intended judicial review, there is no way for this court to deal with his claim that the Board did not do their job properly. However, for the sake of completeness, the court will still examine and scrutinize the Board’s decision for any error of law, procedural unfairness and irregularities.

9.  It is noted that in assessing the appeal by the applicant, the Board held a hearing on 1 November 2019 assisted by an interpreter in Urdu language. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person. Even though the applicant claimed to be illiterate, he was able to understand the Board’s questions and to answer them in his mother tongue with the assistance of the interpreter. The Board carefully assessed the applicant’s claim on those matters asserted by him, but the Board found Munir not influential to the local police as he was arrested after the applicant’s report. The applicant in fact failed to explain why Munir would continue to pursue him when he did not make any further report to the police nor has shown any inclination to do so.

10.  The Board also reassessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  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;

(b)  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;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of torture under Part VIIC of the Immigration Ordinance.

11.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution are unlikely to materialise. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

12.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information for the applicant’s country from different sources. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. Further, in the event that state assistance is not available for whatever reasons, the applicant could safely relocate to other places within Pakistan without undue hardship.

13.  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 error of law, procedural unfairness or irrationality in the Board’s Decision.

14.  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. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Withdrawal application

15.  This court is aware that the applicant had originally requested for an oral hearing of the Leave Application. However, by way of a letter dated 27 January 2025, the Director notified this court that the applicant wrote a letter dated 23 January 2025 to the Registrar of the High Court and wanted to withdraw his judicial review application. In the applicant’s said letter, the applicant states that:-

“I want to withdraw my Judicial Review application under reference (HCAL 3886/2019). Please withdraw all my cases in Hong Kong as I want to go BACK to my home country as soon as possible. My problem in my home country is solved and it is safe for me to go BACK home.”

16.  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 any oral hearing for the Leave Application. It is therefore not necessary for this court to afford him any oral hearing for the Leave Application.

17.  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.”

18.  Thus, it is right for this court to dismiss the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. In fact, in view of the applicant’s latest confirmation in his letter dated 23 January 2025 that it is safe for him to return to his home country, 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. It is just not right to leave the action at large by granting leave to withdraw to the applicant.

Conclusion

19.  For reasons aforesaid, this court refuses to grant leave to the applicant to withdraw the Leave Application and 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