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HCAL 959/2020
[2025] HKCFI 3241
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 959 OF 2020
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Javed Aqib |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative 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. 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 “Torture Claims Appeal Board’s decision dated 6 May 2020”.
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 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”). However, the applicant did not identify any decision in respect of which relief is sought, but stated a date “06 MAY 2020” in Form 86.
2. The decision of the Torture Claims Appeal Board ("the Board") regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 September 2018 (“the Director’s Decision”) was made on 6 May 2020 (“the Board's Decision”). The applicant enclosed a copy of the Board’s Decision in his supporting affirmation dated 21 May 2020. Thus, it is clear that the applicant’s intended judicial review is made in respect of 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/HCAL000959_2020_files/the_Board's_Decision.pdf
3. The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision accordingly.
Amendments
4. In Form 86, the applicant named the Board as the putative respondent but spelt its name wrong. The applicant also wrongly named himself as the putative interested party. 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”.
5. As aforesaid, it is clear that the applicant is seeking leave to apply for judicial review in respect of the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 May 2020”.
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 refouled to Pakistan, the Shias in his village would hurt or kill him due to his Sunni faith.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 May 2025. However, the applicant was absent at the hearing.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. 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 his affirmation that he would advance the grounds of appeal after seeking legal advice on merits.
Discussion
13. 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).
14. 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.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 November 2019. The applicant was present and was given the chance to present his case to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.
16. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found the applicant’s evidence to be contradictory, vague and at times lacking in plausibility. While the Board had taken into account the passage of time and the then most updated country of origin information (“COI”) regarding sectarian tensions in Pakistan, it was not satisfied that the applicant who belonged to the Sunni sect was targeted or assaulted by Shias in his village or was prevented from practicing his religion.
17. The Board also found his claim that Shias in his local area would take an adverse interest in him for such an extended period to be far-fetched. Quite the opposite, in light of the latest COI, the Board found that religious minorities such as Shias had disproportionately been victims of sectarian violence in Pakistan and the level of sectarian violence had decreased. Hence, the Board considered that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan.
18. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claim and the matters giving rise to his claim for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider availability of state protection.
19. 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).
20. 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.
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. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
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 29thday of July 2025
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( Irene LEE )
for Registrar, High Court |
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 29 July 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: 29 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13584/18/9/345/P2682
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3742/18 (formerly RBCZ 12810/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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