AMIN FASIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 773/2020

[2025] HKCFI 3788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 773 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 1^st putative respondent be amended to “Torture Claims Appeal Board”, the name of the 2^nd putative respondent be amended to “Director of Immigration”, the name of the putative interested party be amended to “Director of Immigration”, and the second decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 April 2020”.

2.  The applicant’s application for leave to apply for judicial review in respect of the “Record of screening Interview No. 5, by the Immigration Proceeding in respect of which relief is sought” be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 14 April 2020 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 27 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “Record of screening Interview No. 5, by the Immigration Proceeding in respect of which relief is sought”; and

(2)  “Determination of Appeal Board/Petition with a Hearing issued by the Torture Claims Appeal Board / Non-refoulement Claims petition Office dated 04/06/2018(24 Pages in total)”.

2.  First of all, the Record of screening interview is just as its name implies, a record of screening interview. Pursuant to section 37ZAB of the Immigration Ordinance, Cap. 115, a claimant claiming for non-refoulement protection must attend an interview by an Immigration Officer to provide information and answer questions relating to the claimant’s torture claim. Its purpose was for the Immigration Officer to assess the applicant’s non-refoulement claim.

3.  As the record of screening interview is not even a decision, it is not susceptible to judicial review. The applicant’s application for leave to apply for judicial review in respect of the “Record of screening Interview No. 5, by the Immigration Proceeding in respect of which relief is sought” is therefore dismissed.

4.  Further, the decision dated 4 June 2018 (“the Director’s Decision”) in respect of his non-refoulement claims was in fact made by the Director of Immigration (“the Director”), not “the Torture Claims Appeal Board / Non-refoulement Claims petition Office”.

5.  The Torture Claims Appeal Board (“the Board”) only made one decision on 14 April 2020 (“the Board’s Decision”) in respect of the applicant’s appeal against the Director’s Decision. The applicant also annexed a copy of the Board’s Decision to his supporting affirmation dated 27 April 2020. Thus, it is clear that the second decision that the applicant intended to challenge in the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000773_2020_files/the_Board's_Decision.pdf

6.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision.

Amendments

7.  The applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the 1^st putative respondent and “Director of Immigration Hong”

as the 2^nd putative respondent in Form 86, when only the Board should be named as the 1^st putative respondent and the Director should be named as the 2^nd putative respondent.

8.  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.

9.  Further, the applicant named “Torture Claims Appeal Board / Non-Refoulem Non-refoulement Claims Petition Office” as the 1^st putative interested party and “Director of Immigration” as the 2^nd putative interested party in Form 86, when only the Director should be so named.

10.  Thus, on this court’s own motion, the name of the 1^st putative respondent is amended to “Torture Claims Appeal Board”, the name of the 2^nd putative respondent is amended to “Director of Immigration”, and the name of the putative interested party is amended to “Director of Immigration”.

11.  As aforesaid, the second decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the second decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 14 April 2020”.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by a Mr MA, who killed the applicant’s uncle due to a land dispute between Mr MA and the applicant’s father and uncle. Mr MA threatened to kill the applicant because he reported the murder of his uncle to the police.

Grounds for judicial review

14.  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).

15.  The applicant did not advance any ground for his intended judicial review in Form 86. The applicant merely stated in his supporting affirmation dated 27 April 2020 that he was not satisfied with the Director and the Board. However, the applicant attached a document with the title “Reasons” to his affirmation. In that document, the applicant stated that he was “not satisfied by the learned Director of Immigration and appeal board because it’s unfair and did not take into account the reality of Pakistan on grounds”. He provided two hyperlinks in the said document, one with the title “Land Mafia” and the other “Pakistan 2019 human rights report – US Embassy Islamabad”.

Discussion

16.  First of all, 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 (see Re Moshsin Ali [2018] HKCA 549).

17.  Secondly, it was held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

18.  Thus, the hyperlinks that were given in the said document should not be assessed by this court and cannot assist the applicant in the Leave Application.

19.  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).

20.  In assessing the appeal by the applicant, the Board held an oral hearing on 9 August 2019. The Board questioned the applicant for details regarding his claims but found that the applicant was not a credible witness. The Board found that the applicant had fabricated his claims so as to create a basis upon which to apply for non-refoulement protection.

21.  The Board found numerous significant inconsistencies in the applicant’s written and oral evidence. When the Board expressed its concern to the applicant that he had no interest in the disputed land and he did not witness the shooting of his uncle, and hence it seemed unlikely that Mr MA would have any adverse interest in him, the applicant replied that he was the one responsible for making the police complaint. When being asked what else he did, the applicant said he went to the court to help and represented the victim’s side. This claim was not mentioned in the written evidence of the applicant. Further, despite his own answer that the court case had no result, the applicant said that Mr MA would still be motivated to kill him to prevent him from making an appeal to the higher courts.

22.  Based on the implausibilities of the applicant’s evidence, the Board found that the applicant was inventing evidence at the hearing.

23.  Further, the Board found that the applicant’s Chinese visa was issued prior to the applicant’s alleged second assault by Mr MA, and that the applicant did not leave Pakistan until over 50 days after his Chinese visa was issued. The Board also found that the applicant had invented evidence about his father applying for his Chinese visa without his knowledge.

24.  Due to the numerous significant inconsistencies and the lack of credibility of the applicant’s claims, the Board rejected the applicant’s evidence that there was any land dispute between Mr MA and his father and uncle, and that his uncle died in the shooting. The Board therefore rejected the allegations that the applicant had made a complaint to the police, was involved in any court case related to the shooting, or there was any attempt to assault or threats to the applicant. Hence, the Board concluded that there was not a real risk the applicant would face any harm should he return to Pakistan.

25.  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.

26.  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).

27.  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.

28.  The assessment of evidence, country of origin information 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 decision.

29.  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.

30.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

31.  For reasons aforesaid, the Leave Application in respect of both the “Record of screening Interview No. 5, by the Immigration Proceeding in respect of which relief is sought” 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