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HCAL 398/2020
[2025] HKCFI 1681
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 398 OF 2020
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Mehmood Sajid |
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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “the Torture Claims Appeal Board’s decision dated 6 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 which was undated but filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 7 November 2019.
2. However, 7 November 2019 was the date of the oral hearing before the Torture Claims Appeal Board (“the Board”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 January 2019. The Board gave its decision in respect of the said appeal/petition on 6 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/HCAL000398_2020_files/the_Board's_Decision.pdf
3. It is clear that the applicant made a mistake in respect of the date of the Board’s Decision. This court will treat the Leave Application as being made in respect of the Board’s Decision dated 6 January 2020, instead of 7 November 2019.
4. The Board dismissed the applicant’s said appeal/petition as the applicant failed to establish any of the applicable grounds for his non-refoulement claim under the Unified Screening Mechanism (“the USM”).
Amendments
5. The applicant wrongly named the putative respondent and the putative interested party in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
6. As the applicant stated a wrong date of the Board’s Decision in Form 86, the decision in respect of which relief is sought is amended to the Board’s Decision dated 6 January 2020 on this court’s own motion.
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 he was a suspect in a financial scam and was threatened and persecuted by victims of the scam who were high-ranking and influential people in his home village.
Grounds for judicial review
9. 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).
10. The applicant failed to identify any ground for the intended judicial review. He merely alleged in Form 86 and his supporting affirmation dated 20 March 2020 that his life is at risk in his country and he is not satisfied with the Board’s Decision.
Discussion
11. 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).
12. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 7 November 2019. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s did not face any real risk of right to life, risk of torture or risk of persecution. The injury he suffered, even if real, did not attain a minimum level of severity. The Board also considered that reasonably sufficient state protection would be available to the applicant and internal relocation is feasible.
13. Thus, the Board did deal with the alleged danger in the Board’s Decision, but found no reliable evidence to support the applicant’s allegations. The Board therefore concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
14. The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.
15. 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.
16. 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
17. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27thday of May 2025
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( Thomas Chan )
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/Handed to the applicant/the applicant’s solicitors
on 27/5/2025
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: 27/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15458/19/1/331/P3076
Director of Immigration
Putative interested party’s ref. no.: QAT/C 13/19 (Formerly RBCZ/2000048/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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