|
HCAL 1917/2020
[2025] HKCFI 4657
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1917 of 2020
|
BETWEEN
|
| |
Hasnain Saleem |
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) Martin Wong:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 24 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 July 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 21 September 2018 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent and the DOI as an interested party.
2. The TCAB Decision concerned only three of the four applicable grounds under the USM, for his claim on the basis of torture risks was made and refused by the DOI in 2012. His appeal against that decision to the TCAB was refused for being out of time in 2013. He is not seeking judicial review of this previous TCAB decision, which is way out of time in any event.
3. The Applicant requested for a hearing but he did not attend the scheduled hearing on 12 September 2025. Court record shows that the notice of hearing was sent to his correspondence address on 26 August 2025, which was updated through the Immigration Department on 25 August 2025. I see no reason why I should not proceed to deal with this application on paper despite his absence.
Background
4. The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed by members of the ruling and rival political party if he was returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.
Discussion
5. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).
6. In the Form 86, the Applicant asserted that the TCAB Decision was “not reasonable and fair” but in his affirmation filed in support of this application he did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.
7. Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence, and all materials placed before it [10-23]. After thoroughly analysing the same, including assessing credibility of the Applicant’s testimony at the hearing before it, the TCAB came to find that the Applicant’s allegations were not made out [24-35].
8. With the correct principles in respect of the three applicable USM grounds before it in mind, the TCAB went on to conclude that none of them was made out [36-60].
9. I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
10. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 14th day of October 2025
| |
(Cheung Ho Yat, Annson)
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 14 October 2025
Hasnain Saleem
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 14 October 2025
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13767/18/10/109/P2724
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 424/09 (formerly RBCZ/2058/08); QA T/C 2537/18 (formerly RBCZ 2000053/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|