ANWAR NAVEED v. TORTURE CLAIMS APPEAL BOARD

HCAL 87/2020

[2025] HKCFI 2644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 87 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 oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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

3.  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 8 January 2020 and filed on 9 January 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 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/HCAL000087_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s case did not indicate a reasonable likely risk that he would be subjected to torture, persecution, or breach of his rights under Article 2 and Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance in his country. Thus, the Board dismissed the applicant’s appeal and disallowed his petition against the decision of the Director of Immigration (“the Director”) dated 25 July 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim under the Unified Screening Mechanism (“the USM”).

Amendment

3.  In Form 86, the applicant wrongly named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent when only the Board should be the putative respondent. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because he would be at risk of harm or being killed by the Shia sect in his village because he had injured a Shia leader Zakir in a 2018 incident.

Withdrawal of the Leave Application

7.  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 February 2025, the Director notified this court that the applicant wrote a letter dated 24 January 2025 to withdraw his judicial review application. In the applicant’s said letter, the applicant stated that:-

“I want to go back to my home country Pakistan Lahore as soon as possible. It is safe for me to go back and I have no money to buy air ticket. I want to cancel all my non-refoulement claims including appeal/JR (if any) in Hong Kong and there is no need to see my non-refoulement claim case officer. I have no other request.”

8.  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.

9.  However, 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.”

10.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. The applicant’s application to withdraw the Leave Application is therefore refused. This court will proceed to consider the merits of the Leave Application in respect of the Board’s Decision.

Grounds for judicial review

11.  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).

12.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”. The contents of this document are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.

5. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.

7. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.

8. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

13.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

14.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

15.  Paragraphs 2, 4 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Paragraph 8 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed. It is not a ground at all. Thus, only paragraphs 1, 3, 6 and 7 of the grounds are relevant to the Leave Application.

16.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

17.  In any event, the Board did assess the applicant’s risk of right to life. The Board found that the applicant’s case did not indicate he would reasonably likely be at risk of harm from Zakir or his associates in Pakistan, let alone a risk of deprivation of his right to life.

18.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

19.  In fact, the Board did consider the applicant’s personal background and mentioned in the Board’s Decision that in the evaluation of the applicant’s potential risk of harm, the applicant’s personal encounter was of prime importance.

20.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise. This is just a vague and general accusation without any specificity.

21.  In fact, the Board did not make any finding that the police in Pakistan would not be able to protect the applicant, but just noted corruption in Pakistan. The Board mentioned that one had to see if the applicant would personally be at risk, but found that the applicant did not tell a truthful case and the events did not indicate the applicant would reasonably likely be at risk of torture in Pakistan.

22.  In paragraph 6 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

23.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

24.  In paragraph 7 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

25.  As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

26.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

27.  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).

28.  Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

29.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 21 October 2019 and the applicant was present. The Board did not find that the applicant’s version of being attacked by a Shia village leader for a land scramble or as a revenge towards a personal attack to be truthful. Had the applicant had a conflict with a village Shia leader in his village, the applicant had the option to relocate to other parts of the country. The Board also found that the applicant’s case did not indicate a reasonable likely risk that he would be subjected to any of the proscribed forms of harm. Thus, the Board concluded that there was no justification to set aside the Director’s Decision.

30.  The finding of facts was solely within the ambit of the Board. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

31.  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.

32.  Moreover, since the applicant has confirmed in his letter dated 24 January 2025 that it is safe for him to go back to Pakistan, there is absolutely no ground for him to claim non-refoulement protection at all.

33.  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

34.  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