SYED MANSOOR HAYAT v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 387/2020

[2025] HKCFI 4431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 387 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, the name of the 2^nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the second decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 January 2020”.

2.      The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 9 November 2018 be dismissed.

3.      The applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 23 January 2020 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)     “The Decision of the Director of Immigration dated 9^th November 2018”; and

(2)     “The Decision of the Adjudicator dated 23^rd January 2020”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 23 January 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 November 2018 (“the Director’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000387_2020_files/the_Board's_Decision.pdf

3.  The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (but not Torture Risk[4]) under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

4.  The applicant had previously made a torture claim on 10 October 2009.  The Director rejected his torture claim on 31 May 2012.  The applicant submitted an appeal against that decision to the Board on 28 November 2012.  The appeal application, being a late filing, was refused by the Board on 6 December 2012.  Thus, the applicant’s Torture Risk had been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

5.  In Form 86, the applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2^nd putative respondent.   However, the adjudicator actually determined the applicant’s petition in her capacity as a member of the Board.  Thus, the 2^nd putative respondent should be the Board.

6.  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. 

7.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

8.  Thus, on this court’s own motion, the name of the 2^nd putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the second decision in respect of which relief is sought is amended to “Torture claims Appeal Board’s decision dated 23 January 2020”.

The intended judicial review in respect of the Director’s Decision

9.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

10.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed.  This court will further consider the Leave Application in respect of the Board’s Decision only.

The applicant’s case

11.  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.

12.  In sum, the applicant raised his non-refoulement claim because if refouled to Pakistan, he would face harm or being killed by Raja Amjad (“Raja”) and Altaf Shah (“Shah”) and their people due to a land dispute.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application.  However, he was absent at the hearing on 22 July 2025.

14.  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.

15.  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

16.  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).

17.  The applicant annexed a document to his supporting affirmation dated 12 March 2020 with the title “Grounds on which Relief is sought”.  The contents of this document are reproduced as follows:-

“1. The Applicant believes that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these 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 such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

2. From the Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured and even shot in his belly, just because he changes his religion to the religion of his choice. It is no secret that how religious minorities are being treated in his country, i.e. Pakistan. Especially the ones who convert from Islam to other religions. Therefore, it is submitted that the state would be rendered liable to the applicant 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 Applicant submits 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. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s 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.

 4.  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 his country is still a very serious problem.  Various human rights organizations have complied reports on the matter which stated testament to the applicant’s assertions.  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.  The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

18.  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

19.  First of all, some of the above grounds were directed at the Director. As mentioned above, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra).  Thus, 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.

20.  Paragraphs 2, 3 and 4 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.  Thus, only paragraph 1 of the grounds is relevant to the Leave Application.

21.  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. 

22.  In any event, the Board did assess the applicant’s risk of right to life.  Based on the numerous significant inconsistencies and discrepancies in the applicant’s evidence, the Board found that the applicant had fabricated his claims for protection.  Thus, the Board found that there was not a real risk the applicant would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

23.  The applicant also complained that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

24.  This court notes that the applicant filed his appeal/petition to the Board on 21 November 2018 and the Board’s hearing was held on 10 December 2019.  The applicant had more than one year from the time he lodged his petition to the Board to the Board’s hearing.  He should have ample time and opportunities to obtain whatever evidence he wanted to submit to the Board for consideration, if indeed he had such evidence.  The applicant also failed to state what evidence he claimed to have and wanted to obtain to support his claim.

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 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.  In assessing the appeal by the applicant, the Board held an oral hearing on 10 December 2019.  The applicant was present and was given the chance to present his case to the Board in person. 

29.  As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully.  The Board found that the applicant’s evidence at the hearing regarding the alleged land dispute was significantly and fundamentally different from his evidence given to the Immigration Department, leading it to conclude that the applicant was not a witness of truth and his claims for protection were not credible.

30.  The applicant was inconsistent on even who he claimed to fear, and had given different names to the Board.  When asked to explain the discrepancy, the applicant said he had no explanation but just knew that he had taken an oath to kill these people.  The Board found this response did not address the inconsistency in his evidence.  Further, the Board found that if he had taken an oath to kill the people whom he claimed were responsible for killing his father, it was implausible that he would not be able to recall who they were consistently.

31.  The Board also found the applicant’s evidence inconsistent in respect of how his father died.  The applicant claimed that his father was killed by the men who seized the land by force, but his evidence before the Immigration Department was that his father died in a road accident.  The applicant explained the inconsistency by suggesting that there might have been a mistake made in the interpretation of his written evidence attached to his supplementary claim form.  The Board did not accept the explanation and gave its reasons at para 50 in the Board’s Decision.

32.  The Board was of the strong opinion that the applicant had fabricated his claims for protection, as his evidence at the hearing was entirely different from his previous evidence.

33.  The Board did not accept that the applicant or his family was involved in any land dispute with anyone.  It therefore did not accept that the applicant’s land was seized by anyone or any offers were made to either him or his father to sell the land at a discounted price.  The Board did not accept that the applicant was threatened by these people or that they physically harmed him or his father.  It also was not satisfied that the applicant’s father was in fact deceased given his conflicting evidence regarding how he allegedly died.  However, even if his father had passed away, the Board did not accept that these people were responsible for his father’s death.  Further, the Board did not accept that since the applicant departed Pakistan, his brother had been threatened by these people.

34.  The Board was satisfied that neither the applicant nor any of his family members had experienced any problems from either Raja, Shah (whom he had previously mentioned in an interview dated 10 October 2009 and confirmed during the interview with the immigration officer on 1 November 2018) or Rana Asif and Khaliq Khan because of a dispute over land owned by his father.  Hence, the Board did not accept that the applicant faced harm from any of these people on his return to Pakistan.

35.  Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

36.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

37.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

38.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

39.  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. 

40.  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

41.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision 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