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HCAL 977/2020
[2025] HKCFI 3263
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 977 OF 2020
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Khan Aamir |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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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 22 May 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 5 May 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/HCAL000977_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant failed to substantiate that he qualified for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 December 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named both the Board and “Non-refoulement Claims Petition Office” as the putative respondents and did not name any interested party, when only the Board should be the putative respondent and the Director should be the putative interested party.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. 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
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 he was in fear of being attacked or even killed by supporters and members of the Pakistan Muslim League (Nawaz) (“PML-N”) if he were returned to Pakistan, as he supported the Pakistan Tehreek-e-Insaf (“PTI”) and refused to join PML-N.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was heard on 15 May 2025. At the hearing, the applicant said that the situation in his home country became worse than before and his life would be in danger if refouled.
9. However, the applicant confirmed that the matters which led to his danger had been presented to the Board and he had nothing further to add.
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. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 22 May 2020. The applicant merely stated in the affirmation that he was not satisfied with the decision of Immigration and his life was still in danger in his home country.
12. As aforesaid, the applicant did not give any ground for the intended judicial review at the oral hearing either.
Discussion
13. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as 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). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.
14. 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).
15. 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.
16. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 24 April 2020. The applicant was present and was given the chance to present his case to the Board in person. However, the applicant maintained that he would not have anything further to add apart from the case as set out on documents.
17. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board had indeed considered the danger the applicant had and would face, but found that among the PML-N people, only one person named Rafan targeted him. On evidence, the Board concluded that the threat and attack against the applicant by Rafan were more a personal matter than a political matter, in particular the attack was intended only to be either a warning or a revenge, which was not meant to be a killing. The Board also found that the attack was a one-off occasion with no incidental persecution and there was no political connotation in the incident.
18. The Board also found that Rafan would not continue to look for the applicant in order to kill him as the applicant would not have the same popularity as before after leaving Pakistan in December 2015 and remaining in Hong Kong for five years at the time of the Board’s hearing.
19. The applicant had not sought protection from local police as he believed they were corrupt and under the control of those powerful politicians who were related to PML-N. The Board, however, found that Rafan was not a state actor. The applicant’s belief that the police would not help him was thus mere speculation.
20. As to internal relocation, the applicant indicated that he believed PML-N people would find him even if he escaped to other places in Pakistan. Although the Board did not make any specific finding on 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).
21. Since Rafan and the applicant had only personal grudge against each other and they fought it out on a one-off occasion, the Board found that the applicant did not face a substantial risk to life. Thus, it is not necessary for the Board to consider internal relocation.
22. The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. In view of the evidence available, the Board found that the applicant failed to substantiate any of the applicable grounds under the USM. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29thday of July 2025
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( 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:
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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 29 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 29 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14938/18/12/295/P2988
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4800/18
(Formerly RBCZ 10483/16) [T8S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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