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HCAL 931/2020
[2025] HKCFI 2055
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 931 OF 2020
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Ahmed Nabeel |
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”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “The Torture Claims Appeal Board’s decision dated 28 April 2020”.
2. The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 25 March 2019 be dismissed.
3. The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 28 April 2020 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 19 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 25 March 2019 (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board (“the Board”) dated 29 April 2020.
2. In relation to the applicant’s claim for non-refoulement protection, the Board made only one decision on 28 April 2020 (“the Board's Decision”). It is clear that the applicant was referring to the Board's Decision but stated a wrong date.
3. 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the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). The Leave Application in respect of the Director’s Decision is hence dismissed.
4. This court will only consider the Leave Application 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/HCAL000931_2020_files/the_Board's_Decision.pdf
5. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision.
6. However, the applicant had previously lodged a torture claim under Part VIIC of the Immigration Ordinance (“the Torture Claim”), which was rejected by the Director on 31 October 2011. The applicant filed a petition against that decision to the Petition Team of the Security Bureau (“the Petition Team”) on 2 November 2011, and the adjudicator of the Petition Team dismissed the petition on 17 November 2011.
7. Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with the remaining 3 grounds under the USM namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3].
Amendments
8. The applicant named the Director and the adjudicator of the Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.
9. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
10. As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.
The applicant’s case
11. 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.
12. In sum, the applicant claimed for non-refoulement protection, as he feared being harmed by his cousin named Zubair if he were to return to Pakistan because he refused to transfer his land to Zubair.
Oral hearing
13. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 13 May 2025.
14. 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.
15. 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
16. 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).
17. However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 19 May 2020. He merely stated in the affirmation that he was not in possession of any of his documents yet and he would be in a position to submit the rest of the documents later on.
Discussion
18. 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).
19. Thus, despite the lack of any specific grounds for judicial review being advanced, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irrationality.
20. In assessing the appeal by the applicant, the Board arranged an oral hearing on 11 March 2020, and the applicant was present at the hearing. Hence, the applicant did have the opportunity to present all his evidence and proof to the Board. It is noted from the Board’s Decision that the applicant had asked his friend to obtain documents relating to his case since 2012, but no such documents were ever produced. The applicant’s bare allegation in his supporting affirmation that he would be in a position to submit further documents later on is simply not credible.
21. In any event, as aforesaid, the assessment of his claim is purely within the ambit of the Director and the Board. This court would not re-assess his claim afresh and receive documents in support of his claim for non-refoulement protection. As held in Nupur Mst v Director of Immigration [2018] HKCA 524, §14(5), due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
22. After due consideration of the law and the evidence of the applicant, the Board concluded that even applying the relatively low standard of proof required in the assessment of non-refoulement claims, the applicant had fabricated the risks he faced as the basis of his claim, and there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Pakistan.
23. Although the Board did not re-assess the Torture Claim, it was unnecessary to consider the same, as the Director had already considered and refused the Torture Claim on 31 October 2011 and his petition against that decision was dismissed on 17 November 2011.
24. The Board also did not consider availability of state protection and viability of internal relocation. However, as the applicant’s alleged dispute with Zubair is only a private dispute concerning land, and the applicant did not suggest that he would not have any state protection, it is therefore not necessary for the Board to consider the same.
25. As to internal relocation, although the applicant did mention that Zubair could find him wherever he went within Pakistan, it is a well-recognised principle that the decision-makers only need 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).
26. 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 further consider internal relocation.
27. 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 error 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.
28. 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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
29. For reasons aforesaid, the Leave Application in respect of the Board’s Decision is also dismissed.
Dated the 21st day of May 2025
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( Thomas Chan )
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 his 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: 21/5/2025
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: 21/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15766/19/4/24/P3126
Director of Immigration
Putative interested party’s ref. no.: QA T/C 4408/18 (formerly as RBCZ 2000047/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1]Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.
[2]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.
[3]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.
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