|
HCAL 589/2020
[2025] HKCFI 3539
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 589 OF 2020
|
BETWEEN
|
| |
Aftab Saeed |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
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”, and “Director of Immigration” be added as the putative interested party.
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 April 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 24 January 2020 (“the Board’s Decision”).
2. The Board found that there was not any chance of the applicant’s right to life or any other right under the Hong Kong Bill of Rights being infringed if he returned to Pakistan. Thus, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 8 May 2017 (the Director’s Decision), which rejected his claim for non-refoulement protection on the ground of BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”).
3. The applicant’s previous appeal/petition against the Director’s decision dated 18 September 2014, which rejected his claims for non-refoulement protection on the grounds of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] under the USM was dismissed by the Board on 15 August 2016 (“the Board’s Previous Decision”).
4. Both the Board’s Decision and the Board’s Previous Decision can be viewed in the following hyperlinks:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000589_2020_files/the_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000589_2020_files/Earlier_Board's_Decision.pdf
Amendments
5. In Form 86, the applicant named “Torture Claim Appeal Board / Non-refoulement Claims Petition Office” as the putative respondents but did not name any interested party, when the putative respondent should only be the Board and the putative interested party should be the Director.
6. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
7. 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.
The applicant’s case
8. 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 and the Board’s Previous Decision, which can be viewed in the hyperlinks above.
9. In sum, the applicant claimed for non-refoulement protection as he feared that if he returned to Pakistan, he would be harmed or killed by his brother-in-law Jabbar Ali (“Jabbar”), Asif (Jabbar’s nephew) and Jabbar’s brothers. It was because Jabbar sought to obtain the title to the applicant’s family house, which was, after his father’s death, due to be then inherited by the applicant and his siblings.
Oral hearing
10. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 15 July 2025.
11. 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.
12. 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
13. 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).
14. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 9 April 2020. The applicant merely stated in the affirmation that he was not satisfied with the decision of Immigration and that his life would still be in danger in his home country.
Discussion
15. 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).
16. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
17. In assessing the appeal by the applicant, the Board held an oral hearing on 15 January 2020 and the applicant was present. Thus, the applicant did have an opportunity to present his case to the Board in person.
18. As the Board had previously assessed and rejected the applicant’s previous appeal/petition on Torture Risk, BOR 3 Risk and Persecution Risk, the Board reviewed the applicant’s claim in respect of his BOR 2 Risk only.
19. In a letter dated 6 January 2017, the applicant made a number of allegations regarding events which had occurred before he left Pakistan, as well as new allegations regarding subsequent events, but produced no evidence to support the new allegations. The Board also found the contents of the letter showed significant inconsistencies with the accounts he had previously given to the Immigration Department.
20. During the hearing before the Board, the Board invited the applicant to recount the more recent events as contained in the letter. The applicant first replied that he did not remember, and then went on to say that nothing had happened to him or his family since 30 April 2015, which was the date of the Board’s previous oral hearing regarding his previous appeal/petition. The applicant agreed that he was not relying on anything said in the letter and he was simply asking the Board to consider the information that had been before it on 30 April 2015.
21. Having considered all the evidence, including those documents adduced at the previous appeal/petition, the Board found that there was nothing before it to lead it to revise its conclusion that the applicant was a witness upon whom no reliance could be placed. There was also nothing from the applicant’s evidence or country of origin information (“COI”) to lead the Board to conclude, even to the low standard required, that there was any chance the applicant’s right to life or any other right under the Hong Kong Bill of Rights being infringed if he returned to Pakistan.
22. Thus, the applicant’s alleged danger to his life upon return to his home country had been duly considered by the Board.
23. 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 conclusion.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 2025
| |
( 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:
|
|
|
|
|
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/Handed to the applicant/the applicant’s solicitors on:
12 August 2025
Applicant’s ref. no:
Nil |
|
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: 12 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 713/17/6/30/P200
USM288/14/10/5/P87
Director of Immigration
Putative interested party’s ref. no.:
RBCZ/9001336/16
(formerly RBCZ/2861/09)
QA T/C 126/14 (T6S78)
(formerly RBCZ/2861/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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, Cap. 383.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] 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.
[4] 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.
|