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HCAL 320/2020
[2025] HKCFI 2961
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 320 OF 2020
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BETWEEN
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Usman 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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 27 December 2018”.
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 6 March 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") and the Director of Immigration (“the Director”) dated 8 January 2020.
2. Neither the Board nor the Director made any decision on 8 January 2020. The Board made only one decision dated 27 December 2018 (“the Board's Decision”) concerning the applicant’s appeal/petition against the Director’s decision dated 29 November 2016 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000320_2020_files/the_Board's_Decision.pdf
3. At the oral hearing before this court on 24 April 2025, the applicant informed this court that he did not have the decision dated 8 January 2020 and he was only told about this decision by an officer of the Immigration Department.
4. In any event, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. 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).
5. Thus, the Leave Application must be made in respect of the Board’s Decision, and the applicant must have made a mistake about the date of the Board’s Decision.
6. The Board’s Decision was to assess the applicant’s claim based on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”). The Board found that the applicant had failed to establish that he would be harmed by a local goon named Khalid and other members of Pakistan Muslim League (Nawaz) (“PML(N)”) if he were refouled to Pakistan. The Board was not satisfied that there was a real risk that the applicant would arbitrarily be deprived of his life. Thus, the Board found that returning to Pakistan would not expose the applicant to a real risk of a violation of his BOR 2 Risk. Accordingly, the Board refused the applicant’s petition and affirmed the Director’s Decision.
7. Previously, in the Director’s decision dated 3 August 2016, the Director assessed and rejected the applicant’s claims for non-refoulement protection based on the other 3 grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. The applicant did not appeal/petition against that decision.
8. Hence, the applicant’s claim for non-refoulement protection based on those 3 other grounds had already been disposed of and it was not necessary for the Director to deal with them again in the Director’s Decision.
Amendments
9. The applicant spelt the Board’s name wrongly, named the Director as one of the putative respondents and the Board as the putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.
10. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
11. As aforesaid, the decision in respect of which relief is sought should be amended to “Torture Claims Appeal Board’s decision dated 27 December 2018”, and it is so amended on this court’s own motion.
Late application
12. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
13. However, the applicant filed Form 86 only on 6 March 2020, which was more than 14 months from the date of the Board’s Decision (made on 27 December 2018). The applicant was therefore late for more than 11 months in making the Leave Application.
14. This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
15. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. The delay was substantial. There is no justification for the delay when no explanation was given. There is also no merits of the intended judicial review as discussed below.
16. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
17. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
18. 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.
19. In sum, the applicant claimed for non-refoulement protection because he feared being harmed or killed by members of PML(N) due to his support for the Pakistan Tehreek-e-Insaf (“PTI”) if he were refouled to Pakistan.
Grounds for judicial review
20. 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).
21. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 6 March 2020. He merely asserted in his affirmation that he was not satisfied with the Board’s Decision because he had problem in his country.
Oral hearing
22. The applicant requested for an oral hearing of the Leave Application and his case was heard on 24 April 2025.
23. Apart from saying that he did not have the decision dated 8 January 2020, the applicant said that he wanted to stay in Hong Kong because his wife and daughter are in Hong Kong and they are Hong Kong residents. He applied for dependency status, but the result was not known yet. The applicant also produced some documents to show that his wife was suffering from depression and he was suffering from degenerative changes in the spine. He was waiting for operation himself.
Discussion
24. First of all, the fact that the applicant is now married to a wife and has a daughter in Hong Kong is not a valid ground for the intended judicial review. The medical conditions of the applicant and his wife are also not valid grounds for challenging the Board’s Decision. In fact, these issues had never been raised to the Board.
25. 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).
26. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
27. This court noted that the Board assessed the applicant’s BOR 2 Risk without an oral hearing. The Board’s reasons for not having an oral hearing were that the issue to be determined was straightforward, no significant issues of credibility arose and the applicant had been given an opportunity to provide further information and did so on his petition form. Hence, the Board was of the view that there was no procedural unfairness to the applicant.
28. In the applicant’s Notice of Appeal/Petition dated 12 December 2016, the applicant indicated clearly that he had no documents to support his appeal/petition by stating the words “N/A” in the space where he was supposed to list out such supporting documents. He also indicated clearly that he would not have any witness if a hearing was arranged.
29. In fact, the applicant did not request for an oral hearing at all. He only mentioned in the Notice of Appeal/Petition that he would like to appeal because the immigration officer refused his non-refoulement claim even though his life was still dangerous in Pakistan and if he went back, they would shut him up.
30. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).
31. Thus, it was not a must for the applicant to have an oral hearing before the Board. Since the applicant did not request for a hearing and in view of what the applicant stated in the Notice of Appeal/Petition as aforesaid, this court agrees with the Board that there was no procedural unfairness to the applicant when no oral hearing was held before the Board.
32. Moreover, the Board did deal with the applicant’s alleged danger in the Board’s Decision. Based on the available evidence, the Board found that PML(N) lost government at the national level and in Punjab Province in July 2018, and that PTI, which the applicant supported, had formed government with a coalition of independents. PTI had also formed an alliance with several smaller parties and held the majority in the Punjab Assembly. This indicated to the Board that the applicant would face even lower risk of harm because of his membership of PTI should he return to Pakistan. In any event, the Board was also satisfied that the applicant could safely relocate to another area within Pakistan should he be threatened. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on the ground of BOR 2 Risk under the USM.
33. The Board was entitled to make the above findings. This court finds nothing wrong in the way the Board reached its conclusion.
34. This court noticed that the adjudicator, Ms Kay Ransome, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of her capacity, as she was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.
35. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
36. Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms Ransome was indeed a member of the Board and did have the power to determine the applicant’s petition.
37. 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.
38. 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
39. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.
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 the applicant’s 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 14/16/12/5/P3
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 9000639/16 (Formerly RBCZ 3001122/14)
QA T/C 1964/16 (formerly as RBCZ 3001122/14)
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.
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