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HCAL 104/2020
[2025] HKCFI 2488
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 104 OF 2020
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BETWEEN
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Safdar |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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” and the name of the putative interested party be amended to “Director of Immigration”.
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 9 January 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 27 December 2019 (“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/HCAL000104_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not substantiated a case for re-opening his claim under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 16 January 2018 not to re-open the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as both the putative respondent and the putative interested party, 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 Board’s adjudicators and should not be named as a putative respondent or putative interested party at all.
5. 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”.
Events leading to the Leave Application
6. The applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT Claim”) by way of a written representation dated 14 June 2007. The CAT Claim was based upon the applicant’s fear that if he were to return to Pakistan, his eldest brother would harm and torture him, as the eldest brother wanted to sell the applicant’s family house for money.
7. By a Notice of Determination dated 21 June 2012, the Director rejected the CAT Claim as the applicant failed to establish the same. The applicant did not file any appeal/petition against that refusal. Instead, by a written signification of 14 January 2014, the applicant made a fresh non-refoulement claim under the USM after its introduction.
8. The applicant’s claim under the USM was based on three applicable grounds, namely Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (BOR 2 Risk[4] was not included).
9. However, by a letter of 3 November 2017 (“the Withdrawal Letter”), the applicant informed the Director that he wished to withdraw his non-refoulement claim.
10. On 9 November 2017, the Director sent a letter to the applicant to confirm his withdrawal of the non-refoulement claim.
11. On 22 December 2017, the applicant sent another letter (“the Re-opening Letter”) to request the Director to re-open his claim.
12. The Director issued a letter to the applicant on 3 January 2018 asking him to provide sufficient evidence in writing for considering his request to re-open his claim. However, the applicant did not provide any further additional information.
13. By a Notice of Decision dated 16 January 2018, the Director decided not to re-open the applicant’s non-refoulement claim.
14. On 7 February 2018, the applicant filed an appeal/petition against the Director’s decision made on 16 January 2018.
15. On 27 December 2019, the Board dismissed the applicant’s appeal/petition as per the Board’s Decision. Thus, the applicant lodged the Leave Application on 9 January 2020.
Grounds for judicial review
16. The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
17. The applicant did not advance any ground for his intended judicial review in Form 86. However, in his supporting affirmation dated 9 January 2020, which included a 25-page annexure, the applicant raised numerous grounds for his intended judicial review.
18. It is not necessary for this court to list out these grounds or to deal with them individually for reasons stated below.
Oral hearing
19. The applicant requested for an oral hearing of the Leave application and his case was heard on 21 March 2025.
20. At the hearing, this court asked the applicant to clarify the grounds for his intended judicial review. However, the applicant admitted that he paid someone to prepare the grounds in his affirmation and its annexure, but he had no idea what the grounds were about. He merely told this person some information about his personal background and this person prepared all the grounds for him. He could not read English and hence did not know what were contained in the written grounds.
21. Further, the applicant admitted to this court that he sent the Withdrawal Letter on the advice of his friend that he would need to withdraw his appeal before he could be allowed to return to Pakistan to see his dying mother. The Withdrawal Letter was prepared by someone else and he did not know the contents thereof. In fact, the applicant did not wish to withdraw the appeal. He only wanted to return to Pakistan before his mother died.
22. His mother died soon after the submission of the Withdrawal Letter. Thus, the applicant, again on his friend’s advice, asked someone to prepare the Re-opening Letter to apply for the re-opening of his case.
Discussion
23. Since the applicant admitted at the oral hearing that he did not prepare the grounds and did not know what were written in the grounds, the applicant could not rely on such grounds in the intended judicial review, as they are simply not his grounds.
24. In fact, it appears to this court that the writer of these grounds copied the purported grounds randomly from some other cases. The purported grounds were mostly general allegations without any particulars, let alone particulars relevant to the facts of the applicant’s case.
25. There were also many fundamental mistakes in these purported grounds. For example, there was a ground alleging that “he had not received the Director’s letter dated 22 November 2016 inviting him to submit additional facts for the consideration of BOR 2 Risk”. However, the Director did not send out such a letter dated 22 November 2016 to the applicant at all, and the Director had not even assessed the applicant’s non-refoulement claim on the other grounds. There was no reason for the Director to ask the applicant to submit additional facts. There was also an allegation that the Board did not consider reliable country of information for Bangladesh, when the applicant’s country of origin is Pakistan.
26. Thus, it is clear that the purported grounds are not genuine and it is not necessary for this court to deal with such frivolous grounds.
27. Nevertheless, the court will still examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities (see Nupur Mst v Director of Immigration [2018] HKCA 524).
28. The present case only concerns the applicant’s request to re-open his non-refoulement claim, which is governed by section 37ZE of the Immigration Ordinance, Cap 115 (“the Ordinance”). Section 37ZE of the Ordinance reads as follows:-
“37ZE. Withdrawal of torture claim by claimant
(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.
(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—
(a) since the withdrawal, there has been a change of circumstances that—
(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and
(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or
(b) by reason of special circumstances, it would be unjust not to re-open the claim.
...”
29. Thus, the applicant could only re-open the case after withdrawal on two grounds: (1) when there had been a change of circumstances that could not reasonably have been foreseen and when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim, or (2) by reason of special circumstances, it would be unjust not to re-open the claim.
30. It was the Board’s conclusion that having considered the evidence as a whole, it was not satisfied that the applicant had established in evidence that he could rely on either of these two situations.
31. First of all, the finding of facts is within the sole ambit of the Board and it is not for this court to re-assess the facts in judicial review (see Nupur Mst, supra). Thus, the Board’s finding that the applicant was not a credible witness cannot be challenged in judicial review.
32. Moreover, according to the applicant’s case that was put before this court, he withdrew the claim because he wanted to return to Pakistan to see his dying mother (not because his mother had solved his problem), but when his mother had passed away before he returned, he wanted to re-open the claim. Even assuming this was the true situation, there is still no ground for him to re-open the claim. The change of circumstances was just the passing away of his mother. When the mother had passed away, the applicant’s alleged risk of being harmed by his eldest brother remained the same. Thus, the change of circumstances could not increase the prospect of success of his claim.
33. The applicant did not raise any other special circumstances to suggest that it would be unjust not to re-open the claim. Thus, the applicant could not rely on the second ground either.
34. 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 applicant’s re-opening application. 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. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.
35. 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
36. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of June 2025
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( Irene LEE )
for Registrar, High Court
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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: 17 June 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:
17 June 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10225/18/2/109/P1972
Director of Immigration
Putative interested party’s ref. no.: L/M (17686) in ImmD RA 7/37/C (formerly RBCZ/2001985/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[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, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees.
[4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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