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HCAL 1978/2020
[2025] HKCFI 5763
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1978 OF 2020
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BETWEEN
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Hussain Mumtaz |
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 30 September 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 15 September 2020 (“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/HCAL001978_2020_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 23 November 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named both the Board and the Director as the putative respondents but spelt the Board’s name wrong. He also named the Board as the putative interested party.
4. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if returned to Pakistan, he feared being harmed or killed a Mr S who belonged to the Pakistan Tehreek-e-Insaf party (“PTI”) due to his refusal to change his political allegiance from the Pakistan People’s Party to join PTI. Further, the applicant claimed that he feared being killed by a Mr MK who was also a member of PTI and had a land dispute with him. The applicant also claimed that he was wanted by the police for breach of bail.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was originally fixed to be heard on 29 August 2025 but he was absent at the hearing. He subsequently applied for another hearing and his request was acceded to. His case was then heard on 14 October 2025.
9. At the hearing on 14 October 2025, when this court asked the applicant to give his grounds for the intended judicial review, he merely said that he had a fight and a First Information Report. However, the applicant confirmed that all these matters and the supporting documents were presented to the Board.
Grounds for judicial review
10. 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).
11. However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 September 2020. He only mentioned in his affirmation that he did not agree with the Board’s Decision.
12. As aforesaid, the applicant did not advance any valid ground at the oral hearing before this court either.
Discussion
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, even though the applicant has failed to advance any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. In assessing the appeal by the applicant, the Board arranged an oral hearing on 8 November 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
16. This court notes from the Board’s Decision that it had duly considered all the matters that gave rise to the applicant’s fear of return to Pakistan.
17. The Board noted that the applicant did not provide further details of his dispute with Mr S, save that he stated at his screening interview that Mr S was the first of his problems in Pakistan.
18. Significantly, this court notes that the Board had adjourned the hearing for the applicant to retrieve a First Information Report and court documents related to his non-refoulement claim. However, the court documents that were submitted by the applicant did not support his claims of his bail history. The applicant was residing in Pakistan for around 5 years after the arrest and he was never re-arrested for breach of bail. The Pakistan authorities even issued a new passport for him in 2015. Thus, the Board considered that the claims regarding the applicant’s dispute with Mr MK and Mr S were not plausible.
19. The applicant also had no comment when the Board discussed with him country of origin information (“COI”) regarding the prevalence of fraudulent documents in Pakistan.
20. Having considered the claims of the applicant individually and cumulatively, as well as the personal circumstances of the applicant, the Board did not consider that the applicant faced a real risk of any of the proscribed forms of harm from Mr S, Mr MK and/or the supporters of PTI if refouled to Pakistan.
21. In terms of the applicable grounds under the USM, the Board found that there was not a real risk the applicant would face persecution upon refoulement. The applicant had failed to demonstrate that he had a well-founded fear of torture as defined in section 37U of the Immigration Ordinance. The applicant did not face a real risk of being subjected to torture or ill-treatment, or otherwise being arbitrarily deprived of his life.
22. Thus, after due consideration of the law, COI materials and all the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
23. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.
24. As to internal relocation, it is a well-recognised principle that the decision-maker only needs 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).
25. 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 consider internal relocation.
26. The finding of facts, including the assessment of risk of harm and COI materials, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of December 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: 2 December 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:
2 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14743/18/12/100/P2948
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4890/18
(Formerly RBCZ 10807/18 (T8I46))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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