KHAN AZMAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 955/2020

[2025] HKCFI 2449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 955 OF 2020

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 the applicant being absent in open court;

1.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 January 2020”.

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 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 30 July 2018.

2.  However, there was no such decision dated 30 July 2018. In relation to the applicant’s claim for non-refoulement protection, the Torture Claims Appeal Board ("the Board") made a decision on 24 January 2020 (“the Board's Decision”) to affirm the decision of the Director of Immigration (“the Director”) dated 17 July 2018, which rejected the applicant’s non-refoulement claim.

3.  The applicant annexed a copy of the Board’s Decision to his supporting affirmation dated 21 May 2020. It is obvious that the applicant was referring to the Board’s Decision in the Leave Application. Hence, this court shall treat the Board’s Decision as the decision in respect of which relief is sought in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000955_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

Amendments

5.  In Form 86, the applicant did not name any putative respondent and putative interested party when the Board and the Director should be so named respectively. This court therefore makes an order on its own motion to add “Torture Claims Appeal Board” as the putative respondent and “Director of Immigration” as the putative interested party.

6.  As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 21 May 2020, which is 3 months and 28 days after the Board’s Decision (made on 24 January 2020). The applicant was hence late for 28 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.  The applicant did not make any application for extension of time. Although a delay of 28 days is not long, there is no justification for the delay when no explanation was given by the applicant. There is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will still examine the merits of the intended application.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because he was in fear of being harmed or even killed by Hamid, a follower of SHIA Islam sect (“SHIA”), and some other members of SHIA who wanted him to follow their religion if he were to be refouled to Pakistan, and the applicant claimed that he belonged to SIPHA-E-SIHABA, an organisation under SUNNI Islam sect (“SUNNI”).

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 27 May 2025.

15.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

16.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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 advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation. The applicant merely stated in the affirmation that he was not satisfied with the Board’s Decision and that he did not want to go back to Pakistan.

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.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

21.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 20 December 2019 but the applicant was absent. The Board then gave notice to the applicant on the Board’s intention to determine his appeal in his absence. A 7-day notice was also provided to the applicant for a written explanation of his failure to attend the hearing.

22.  The applicant did not provide any written explanation to the Board by the deadline or as at the date of the Board’s Decision. Hence, the Board determined the appeal in his absence based on all the evidence before it.

23.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that there was simply no evidence to support the applicant’s claim that he belonged to SIPHA-E-SIHABA. However, even if the Board found otherwise, the applicant’s role was limited to memorizing the Koran and making prayer calls. Considering his claimed involvement, the Board found that there was no reasonable evidence to suggest that the applicant was a prominent figure or leader of SIPHA-E-SIHABA or SUNNI.

24.  With reference to the most updated country of origin information (“COI’) for the applicant’s country from different sources including those submitted by the applicant, despite there had been SUNNI-SHIA enmity, the Board nevertheless found that the applicant as an ordinary follower of SUNNI would have been unlikely to give rise to a well-founded fear of persecution from the country’s entire SHIA sect, in particular nothing happened to him until his claimed first incident in 2015. There was no proof as to the risk of harm caused to the applicant from SHIA as a whole, but solely from Hamid and some members of SHIA in his locality.

25.  The Board was also not persuaded that Hamid and his people had a real intention to seriously harm or kill the applicant. On the applicant’s own evidence, he was outnumbered in the first attack and the 2 ambushes that followed. Hamid and the other SHIA members could have seriously harmed or even killed him if they really had such an intention. In any event, the alleged injuries resulted from the alleged attack were not serious and did not attain a minimum level of severity. The applicant was able to run away from the second and third incidents, despite being outnumbered. Thus, the Board found the applicant’s allegation of being further harmed or killed to be implausible and disproportionate.

26.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the COI. While noting the problem of the police and authorities in Pakistan being branded as corruptive, there was no or no reliable evidence to show that the state of Pakistan was unwilling or unable to afford protection to the applicant. In addition, the Board assessed the alleged religious disputes between the applicant and Hamid and his people to be within private and personal context, and there was no reliable evidence to show that the conflicts involved authorities of Pakistan on the entire SHIA sect. Thus, the Board did not find that the applicant would not be afforded the requisite level of protection from the government of Pakistan.

27.  As to viability of internal relocation for the applicant, since it was the Board’s finding that the applicant’s alleged risks were not real, it would not be necessary for the Board to consider the issue of internal relocation. However, the Board also found no evidence that the applicant was targeted or wanted by the entire SHIA sect in Pakistan, and hence the Board considered that the applicant’s alleged threats from his enemies could be reduced or negated by internal relocation. The applicant is an able-bodied person of young age and with around nine years of formal education. The Board found that it would not be unduly harsh or unreasonable for the applicant to relocate to other parts of Pakistan.

28.  The assessment of evidence, COI and risk of harm were primarily within the realm of the Board. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

29.  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. 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.

30.  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

31.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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