|
HCAL 3789/2019
[2025] HKCFI 1588
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3789 of 2019
| BETWEEN |
|
|
| |
Malik Muhammad Saqib |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 19 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 18 December 2019 (the “Board’s Decision”).
2. In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents, and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.
3. The Applicant had requested an oral hearing for the application. The hearing took place on 17 March 2025 and the Applicant attended in person. The Applicant however indicated that he had nothing to say.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.
Discussion
5. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
6. In the Form, the Applicant simply stated that the Board’s Decision was wrong and unfair (with no particulars provided), and that he was not satisfied with the decision. The Applicant further alleged that the Board refused his claims without any valid reason. He claimed that he will be mentally and physically tortured by opponents if he returns to his country.
7. In the supporting Affirmation, the Applicant repeated his allegation that the Board’s Decision was unfair. He further stated that the Board erred in §§47 to 50 of its decision. The Applicant accepted that some of his answers given were wrong because he was tortured mentally in Pakistan, and had no experience on how to conduct the case. He further claimed that he does not know English or Cantonese very well. He said he forgot most of his case relating to his problems in Pakistan and in Hong Kong, but he was not lying. The Applicant also alleged that the Board erred in §§115 to 120 of the Board’s Decision in that “he” (presumably the Applicant meant his uncle Ali Bahadur) has a lot of contacts in the “gang groups” and in the police. He claimed that his uncle is a very rich man who can bribe the police in Pakistan to fabricate a claim against him.
8. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It is thus plainly wrong for the Applicant to suggest that the Board refused his claims with no valid reasons given. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.
9. In relation to §§47 to 50 of the Board’s Decision, the Board was merely summarizing the evidence given by the Applicant before the Board. There is nothing wrong with the Board’s Decision in this regard.
10. In so far as the Applicant alleges that he does not know English or Cantonese well, it should be noted that he was assisted by an interpreter in the hearing before the Board (see §57 of the Board’s Decision).
11. In relation to §§115 to 120 of the Board’s Decision, the Applicant’s complaint in gist is that the Board had failed to take into account how powerful his uncle is in Pakistan. The complaint is unmeritorious. The Board had duly considered the Applicant’s claims and evidence (see §§70 to 98, 105, 110, 114 to 115 and 120 of the Board’s Decision). The Board was entitled to reject the Applicant’s evidence based on its analysis. The Board’s Decision was not flawed.
12. In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
13. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me and the grounds put forward by the Applicant.
Conclusion
14. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 22nd day of April 2025.
| |
(Allen 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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 22/4/2025
Malik Muhammad Saqib
Applicant’s ref. no:
Nil |
|
Sent 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 22/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14476/18/11/319/P2884
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4528/18 (formerly RBCZ 12510/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003789_2019_files/the_Board's_Decision.pdf
|