BAIG MIRZA RAZA v. TORTURE CLAIMS APPEAL BOARD

HCAL 953/2020

[2025] HKCFI 3264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 953 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 in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and “Director of Immigration” be added as the putative interested party.

2.   Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 12 May 2020.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 21 May 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 12 May 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/HCAL000953_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed on all his grounds of claim under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 18 September 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments 

3.  The applicant named the Board (with wrong spelling) and Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  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.

5.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if he were returned to Pakistan, he would be killed or harmed by his paternal cousin Ahmed Raza (“Ahmed”) due to a land dispute.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 15 May 2025.  At the hearing, this court asked the applicant to give his grounds for the Leave Application.  The applicant said that he was not satisfied with the Board’s Decision and his life was still in danger. 

9.  The applicant also wanted to submit new documents to this court for consideration, but the applicant confirmed that the new documents related to events happened after the Board’s Decision and the Board could not have considered those matters.

Grounds for judicial review

10.  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).

11.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020.  The applicant merely stated in the affirmation that he was not satisfied with the decision of Immigration and his life was still in danger in his home country.

12.  As aforesaid, the applicant did not give any ground for the intended judicial review at the oral hearing either.

Discussion

13.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as 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).  Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

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, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

16.  In assessing the appeal by the applicant, the Board did not hold an oral hearing.  The Board reasoned that after reviewing the whole case, the Board found that no worthwhile and effective representation could be made and there would be no procedural unfairness to the applicant if his appeal were determined without an oral hearing.  The Board therefore proceeded to determine the applicant’s appeal on papers.

17.  As can be seen from the Board’s Decision, the Board adopted the facts advanced by the applicant in making its decision.  The Board did not make any finding that the applicant was not credible in his factual evidence.  In fact, if the Board were in doubt on the evidence advanced by the applicant on papers, the Board should have afforded an oral hearing to the applicant for him to make clarification even though the applicant did not have an absolute right to an oral hearing, as high standards of fairness were required in such cases.

18.  However, based on the factual background of the applicant’s case, this court finds the Board’s conclusion that Ahmed’s behavior did not show any real intention to harm or kill the applicant rather irrational.  According to the applicant, Ahmed took out a pistol, chased after him to the street and shot him.  Ahmed missed the shot but hit the applicant’s brother instead.  As a result of the applicant’s brother’s death, Ahmed went into hiding.  It seems clear to this court that Ahmed’s actions were intended to kill the applicant.  The police reports dated 4 February 2007 and 28 May 2012 as well as the complaint report dated 20 May 2010 submitted by the applicant may support the applicant’s case.  It is rather odd that the Board would come to the conclusion that Ahmed had no such intention to kill.

19.  It is also rather irrational for the Board to think that the alleged injuries resulted from the attack did not attain a minimum level of severity and the low intensity of past ill-treatment by Ahmed was indicative of a small future risk of harm.  If Ahmed did not miss the shot or the applicant’s brother did not intervene, the applicant could have been seriously injured or killed. The low intensity of past ill-treatment by Ahmed could be just due to the fact that he was in hiding after the death of the applicant’s brother.  It may not be indicative of a small future risk of harm upon the applicant’s return to Pakistan.

20.  In any event, these matters were crucial to the applicant’s case.  This court does not think that high standards of fairness were achieved when the applicant was not afforded an oral hearing to clarify them. 

21.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to country of origin information (“COI’) for the applicant’s home country from different sources.  While noting the problem of widespread corruption of the police in Pakistan, there was evidence from reliable COI showing that there were on-going reforms with positive results in combating corruption and providing legal protection to citizens of Pakistan.  The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. 

22.  However, it was the applicant’s assertion that the police would not help him because of Ahmed’s political attachment and connection, but the Board dismissed it as just the applicant’s speculation without giving him an opportunity to elaborate this in an oral hearing.  The applicant also had no opportunity to comment on the COI relied upon by the Board.  This is procedural unfairness to the applicant.

23.  It was held in AM v Director of Immigration and William Lam, Adjudicator, HCAL 102/2012, that “The extent to which the Assessor and Adjudicator have to delve into country conditions depends very much on how each claimant frames his claim.  Here, given the way this claim was framed there had to be substantial enquiry into the country conditions by both the Assessor and the Adjudicator.”

24.  Apart from claiming that the police would not help him, the applicant also produced newspaper articles about corruption in Pakistan and Wikipedia article on organized crime in Pakistan.  It is clear that the applicant was claiming that there was no state protection for him.  The Board should therefore make substantial enquiry into the matter.  Whether the applicant could succeed in his claim is another matter, but he should be given an opportunity to present his case further and to comment on the materials relied on by the Board in an oral hearing.  It seems to this court that the Board had failed in its duty to make substantial enquiry when no oral hearing was afforded to the applicant.

25.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court finds that there could be procedural unfairness or irrationality in the Board’s 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 established such a claim and hence leave should be granted.

Conclusion

27.  For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

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