NAVEED UR REHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 758/2020

[2025] HKCFI 3833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 758 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”, and the name of the putative interested party be amended to “Director of Immigration”.

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 23 April 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 20 November 2019 (“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/HCAL000758_2020_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board thus confirmed the decision of the Director of Immigration (“the Director”) dated 30 May 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named both the Board and the Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

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

Late application

5.  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.

6.  However, the applicant filed Form 86 on 23 April 2020, which was more than 5 months after the Board’s Decision (made on 20 November 2019). The applicant was hence late for more than 2 months 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.

7.  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.

8.  The applicant did not make any application for extension of time. Although the delay of more than 2 months was not too 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.

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

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Pakistan, he would be harmed or killed by his uncle S who was one of his paternal uncles and a supporter of the Pakistan Muslim League (Nawaz) (“PML(N)”), due to a land dispute. Moreover, he had married a permanent resident of Hong Kong and wanted to live in Hong Kong with his wife. Thus, the applicant also claimed that he and his wife would suffer harm if the applicant were refouled to Pakistan causing them to live separately.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 23 April 2020. The applicant merely stated in his supporting affirmation that the Board disregarded his dangerous situation.

Discussion

14.  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).

15.  Thus, the applicant cannot ask this court to re-assess the facts of his case including his alleged danger in Pakistan, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

16.  The applicant was afforded an oral hearing before the Board on 30 October 2019 and the applicant was present. The Board questioned the applicant for details regarding the land dispute. However, part way through the hearing, the applicant told the Board that he did not want to answer any more questions. The Board had specifically told him that it had queries about his claims and if he chose not to address those, it was unlikely that the Board would reverse the Director’s Decision. The applicant told the Board that he understood and still did not want to answer any more questions and wanted to rely on the information in the hearing bundle.

17.  Based on the evidence before the Board, the Board was not able to make findings in favour of the applicant. Hence, the Board considered that the applicant did not face a real risk of proscribed harm from his uncle S, the relatives of uncle S and/or supporters of PML(N), if refouled to Pakistan.

18.  However, the applicant was willing to discuss with the Board the situation regarding his family in Hong Kong. The Board set out the relevant legal principles regarding the rights to a family and rights of the child in paragraphs 26 to 31 in the Board’s Decision. While the Board accepted that the applicant would suffer emotional and psychological harm if separated from his wife, the harm he would suffer was not for a convention reason for the purpose of the assessment of Persecution Risk[1] under the USM.

19.  It was a private decision between the applicant and his wife as to whether she would accompany the applicant to Pakistan. The perceived harm from the separation did not involve any public official or a person acting in an official capacity for the purpose of Torture Risk[2].

20.  The Board did not consider that there was any real risk of the applicant being deprived of his life as a consequence of being separated from his wife for the purpose of BOR 2 Risk[3].

21.  On the balance of the evidence, the Board considered that the emotional and psychological harm the applicant might face would not meet the minimum level of severity to meet the very high standard to amount to BOR 3 Risk[4] if he were to be separated from his wife.

22.  Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm if he were returned to Pakistan.

23.  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. Thus, the applicant’s alleged danger had been duly assessed and rejected by the Board.

24.  In fact, as held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

25.  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.

26.  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

27.  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