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HCAL 3368/2019
[2025] HKCFI 3121
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3368 OF 2019
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BETWEEN
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Faheem Muhammad |
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 13 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect the decision of the Torture Claims Appeal Board ("the Board") dated 31 October 2019 (“the Board’s Decision”).
2. The Board found that the applicant failed to establish a case under BOR 2 Risk[1] for his non-refoulement claim under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 10 April 2017, which rejected the applicant’s non-refoulement claim based on BOR 2 Risk.
3. Previously, the Board made a decision on 13 March 2017 (“the Board’s Previous Decision”) in that the applicant was found to have failed to establish his claims for non-refoulement protection in respect of the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s decision dated 27 November 2015.
4. Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with BOR 2 Risk.
5. 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/2019/HCAL003368_2019_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003368_2019_files/2nd_Board's_Decision.pdf
Amendments
6. The applicant did not properly name the putative respondent and the putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.
7. 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”.
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 because he feared being harmed or killed by his neighbour Asim, a supporter of Pakistan Muslim League-N, as the applicant’s father had refused to sell the land and the house to Asim at a price much lower than the market price.
Grounds for judicial review
10. 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).
11. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 13 November 2019. The applicant only stated in his affirmation that he wanted to seek leave to judicial review against the Adjudicator William Lam who refused his appeal, as well as the Director of Immigration who rejected his torture claim under Part VIIC of the Immigration Ordinance.
Discussion
12. First of all, only the Board’s decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). This court will therefore consider the Leave Application in respect of the Board’s Decision only.
13. 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).
14. Thus, the applicant cannot ask this court to re-assess the facts of his case, but 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 by the applicant for the intended judicial review.
15. In assessing the applicant’s appeal/petition in relation to BOR 2 Risk, the Board did not arrange an oral hearing. However, the Board did give its reasons for not affording the applicant an oral hearing in the Board’s Decision. As the Board pointed out, the applicant was given the opportunity by the Director to provide further materials but he had provided nothing. While the applicant had written to the Board in his Notice of Appeal, he had provided nothing new as compared with what he had stated previously. His case was abundantly clear then as was before when it was assessed on the other three applicable grounds under the USM.
16. The Board did not see the need or the justification to organize yet another oral hearing merely to re-canvass the same case which had been dealt with before. This was supported by the Court of Appeal’s decision in AW v Director of Immigration CACV 63/2015, where it was held that “The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently”.
17. The Board was of the view that the applicant had stated what he wished to say, and the Board had nothing to ask him. Thus, the Board proceeded to determine the appeal/petition regarding the applicant’s BOR 2 Risk on paper.
18. This court finds no flaw in the Board’s decision in not having an oral hearing for the applicant. On 24 March 2017, the Director did invite the applicant to submit within 14 days any further material for consideration for the assessment of his BOR 2 Risk. However, the applicant had not produced any material. It is clear that an oral hearing would not have served any useful purpose.
19. Thus, the Board was right in deciding that when there was nothing new for it to take into consideration for BOR 2 Risk, there was no need to afford the applicant any oral hearing.
20. Moreover, as held in Re Kulwinder Kaur [2022] HKCA 48, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk. Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016).
21. In the Board’s Previous Decision, the Board did find that the risks claimed on the other three applicable grounds, including BOR 3 Risk, were not made out. When there were no additional facts provided by the applicant, BOR 2 Risk could not be established either.
22. 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.
23. 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 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd day of July 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: 22 July 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: 22 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 417/17/4/66/P119
USM 2721/15/12/50/P734
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 9001176/17 (Formerly RBCZ 785/14)
QA T/C 1566/15 (T6S106) (formerly RBCZ 785/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of the 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.
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