SHAHZAD NAVEED v. TORTURE CLAIMS APPEAL BOARD

HCAL 2121/2020

[2025] HKCFI 5762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2121 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 the applicant being absent in open court;

1.  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 October 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 16 October 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/HCAL002121_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 26 November 2018, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by his uncle due to a dispute over family land. He claimed that his uncle had connections with the Pakistan Muslim League (Nawaz) (“PMLN”) and would be able to locate him anywhere he went in Pakistan.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 6 November 2025.

6.  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 The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

7.  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

8.  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).

9.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 23 October 2020. He merely stated in the affirmation that he did not agree with the adjudicator.

Discussion

10.  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).

11.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced.

12.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 10 June 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

13.  As can be seen from the Board’s Decision, the Board found that the applicant’s oral evidence about the land dispute was inconsistent with his previous claims in various aspects. The applicant’s previous claim was that his father and uncle should have inherited the land together but his uncle forced his father to give him the land. However, his evidence at the hearing was that his father and uncle had no dispute about the property and his uncle’s only problem was with the applicant because of his desire to build a house on the land. His uncle had inherited a different piece of land nearby. The Board found it simply not credible that the applicant could forget the central basis of his claim.

14.  Accordingly, the Board was satisfied that the applicant’s claims as to the seriousness of any dispute that he might have with his uncle about family land were either exaggerated or untrue and were completely lacking in credibility.

15.  As the claimed basis for any dispute between he and his uncle was untrue, the Board found that the applicant had established no basis for a finding that his uncle would seriously harm or kill him if he returned to Pakistan. The Board also found that it was unnecessary to consider the applicant’s claims about his uncle’s links to PMLN, which was not even mentioned by the applicant at the hearing.

16.  Thus, the Board found the applicant failed to show that he had a real risk of harm on any of the applicable grounds under the USM.

17.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

18.  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).

19.  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.

20.  The assessment of evidence 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 conclusion.

21.  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.

22.  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

23.  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