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HCAL 2140/2020
[2025] HKCFI 5851
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2140 OF 2020
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BETWEEN
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Akhter Hamyoun |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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. 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 27 October 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 15 October 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/HCAL002140_2020_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s non-refoulement claim for protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 May 2020 and confirmed the same.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by Adnan Hussain and Arsalan Zubair (collectively “his Enemies”) who were members of the ruling party Pakistan Tehreek-e-Insaf (“PTI”). The applicant was a member and the president of the Youth Wing of Pakistan Muslim League Nawaz (“PMLN”), and he had refused to stop working for PMLN to join PTI.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application. His case was heard on 6 November 2025.
6. When this court asked the applicant for the grounds for the intended judicial review, he merely said that his life would be in danger in Pakistan because of his political affiliation. However, he confirmed that he had presented everything to the Board.
Grounds for judicial review
7. 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).
8. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 27 October 2020. He merely stated in the affirmation that he did not agree with the adjudicator of the Board.
9. What the applicant said at the oral hearing could not be regarded as grounds for the judicial review at all.
Discussion
10. 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).
11. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced.
12. In assessing the appeal by the applicant, the Board arranged an oral hearing on 20 July 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
13. As can be seen from paragraph 31 of the Board’s Decision, the Board found that the applicant was not a reliable witness and his version of story was not believable. His version of story as recorded in the hearing bundle was different in many aspects from the story he told the Board at the hearing.
14. The Board accepted the applicant’s background as true, he had been a member and president of the Youth Wing of PMLN in his district, and he had made a report to the police after the alleged attack. However, apart from that, all the other matters including the alleged threats by his Enemies were not accepted.
15. Furthermore, the dispute and matters relating thereto were confined to his local area. There was nothing in the evidence that suggested that the government would help his Enemies to track down the applicant so as to harm him. In particular, the Board did not find that his Enemies were so powerful and influential as claimed. There was no evidence to show state acquiescence in the applicant’s dispute with his Enemies.
16. Despite its findings as summarised above, the Board did go on to assess the applicant’s risks by taking his case to the highest and assuming that the claimed threats and attacks from his Enemies were true. However, the Board found that the injuries and ill-treatment inflicted upon him did not attain a minimum level of severity. There was no ground to believe that the applicant would be tortured or seriously harmed if he was returned to Pakistan.
17. Even if the applicant would be subjected to any real risk of harm, his problem with his Enemies was limited to his local area. There was little evidence to substantiate the claim that his Enemies could or would search for him throughout such a large country with such a huge population.
18. Further, the Board had considered country of origin information (“COI”) and concluded that there were sufficient safe guards established by the state should the applicant encounter any difficulties in Pakistan.
19. The Board did not see that the question of internal relocation arose with the above findings. Nevertheless, the Board did explicitly state that if it were necessary for the applicant to get out of the place where he used to live and to keep away from his Enemies, he could relocate to other places in Pakistan upon refoulement. The applicant was relatively young with 18 years of education (including 4 years in England) and 7 years of work experience. Hence, he could reasonably be expected to relocate.
20. Thus, the applicant’s risks on all the applicable grounds under the USM had all been duly considered but rejected by the Board.
21. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of December 2025
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( Irene LEE )
for Registrar, High Court
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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:
2 December 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:
2 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16944/20/5/33/P3336
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 87/20
(formerly RBCZ 10043/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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