MUHAMMAD QASIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 93/2020

[2025] HKCFI 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 93 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “the decision of the Torture Claims Appeal Board dated 23 December 2019”.

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 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Immigration Department dated 6 September 2018.

2.  There was in fact no such decision of the Immigration Department dated 6 September 2018.  The applicant only filed a petition on 6 September 2018 to the Torture Claims Appeal Board (“the Board”) against the decision of the Director of Immigration (“the Director”) dated 24 August 2018, which rejected his claim for non-refoulement protection.

3.  The applicant had previously lodged a torture claim under the old system on 22 August 2007 and his claim was rejected by an immigration officer on 18 September 2013.  He then lodged an appeal against this decision to the Board on 30 September 2013.

4.  The Board reviewed the applicant’s said petition and appeal in one go under the Unified Screening Mechanism (“the USM”).

5.  As stated in the Board’s decision dated 23 December 2019 (“the Board’s Decision”), the Board found that the applicant’s claim failed on all the applicable grounds under the USM, and the Board rejected the applicant’s appeal and confirmed the Director’s decisions.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000093_2020_files/the_Board's_Decision.pdf

Amendments

6.  It is clear that the applicant should have applied for leave to judicial review the Board’s Decision instead of a decision of the Immigration Department dated 6 September 2018, which is not in existence.

7.  Likewise, it is clearly wrong for the applicant to name the Immigration Department as both the proposed respondent and the proposed interested party in Form 86.  The putative respondent should in fact be the Board, and the Director should be the putative interested party.

8.  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”.  Likewise, the decision in respect of which relief is sought under the Leave Application is amended to the Board’s Decision.

The applicant’s case

9.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male national of Pakistan born in Village Sheenka, Tehsil Hazro, District Attock, Punjab, Pakistan.  He was 35 years old when the Board decided on his claim on 23 December 2019.  He was educated up to class 4 and worked as a farmer before he left his home country in 2001.

(2)   The applicant entered Hong Kong on 20 March 2001 and overstayed since 28 March 2001.  He was arrested by the Hong Kong police on 3 December 2006, and was convicted for illegally remaining in Hong Kong and using an identity card relating to another person on 26 February 2007.  He was sentenced to 15 months’ imprisonment and was released on recognizance on 27 January 2008.

(3)   The applicant claimed that he fell in love with a girl called Sakeena Khan (“Sakeena”) in 2000 when the girl was 15.  Sakeena came from a rich and politically influential family and was the applicant’s neighbour.  Her father, Anwar Khan (“AK”), was the leader of the applicant’s home village.  AK was also a big landlord of the village and belonged to the party of Muslim League (N), which became the ruling party of the country after the general election in 2013.

(4)   Sakeena’s uncle, Aajab Khan, was the Nazim (administrator) of the applicant’s home village.  He also belonged to Muslim League (N).

(5)   AK asked the applicant to stop seeing Sakeena and threatened to harm and kill him.  Hence, the applicant felt that his life was in danger and he moved to stay in different places.  Eventually, he left Pakistan for Hong Kong.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 9 January 2020.  He merely stated in his affirmation that he would like to reject and review the decision made by the Immigration Department on his case and they disregarded his dangerous situation.

Discussion

12.  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).

13.  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.

14.  The applicant did not advance any specific ground for the intended judicial review, but just made a bare allegation that the Immigration Department disregarded his dangerous situation.  Despite the lack of specific grounds and for the sake of completeness, the court will still examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

15.  It is noted that the Board held an oral hearing on 18 November 2019.  The applicant was present and was given the chance to supplement what he had stated in his claim and to present his grounds of appeal to the Board in person.  The Board also questioned him to clarify certain matters. The Board carefully assessed the applicant’s claim on those matters asserted by him, but the Board found AK had no genuine intention to harm or kill him.  The Board further found that even if AK was rich and influential as claimed, there was no evidence to suggest that his influence reached beyond the applicant’s home village or that he was resourceful enough to locate him had he moved to stay in other parts of the country.

16.  The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  risk of torture under Part VIIC of the Immigration Ordinance;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol.

17.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was never even harmed by AK.  AK only verbally threatened him because of his relationship with his daughter.  The applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution are unlikely to materialise.  Hence, the Board came to the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

18.  In assessing the viability for the applicant’s internal relocation, the Board had referred to objective country of origin information for the applicant’s country.  The Board noted the applicant’s evidence that he was free from any trouble from AK when he moved to stay with his friend in Jalaliya and when he stayed in a shelter in another place before his departure from Pakistan.  While concluding that the applicant was not facing any real and substantial threats should he return to his home country, the Board was minded to assess that the applicant being an able-bodied adult could safely relocate to other places within Pakistan without undue hardship.

19.  It is therefore utterly not true that the Board had disregarded the applicant’s dangerous situation.

20.  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 four 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.

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

Conclusion

22.  For reasons aforesaid, 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