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HCAL 1999/2020
[2025] HKCFI 5185
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1999 OF 2020
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BETWEEN
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Rafique Moon |
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 24 September 2020”.
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 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 24 September 2020 without identifying the decision maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 24 September 2020 (“the Board’s Decision”) in respect of the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 29 November 2017 (“the Director’s Decision”). The applicant also confirmed at the oral hearing before this court on 19 August 2025 that the Board’s Decision was the subject of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001999_2020_files/the_Board's_Decision.pdf
3. The Board found that the applicant had failed to establish that he had a right to non-refoulement protection in Hong Kong on any of the applicable grounds (other than Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed his petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].
4. The applicant had previously raised a torture claim in 2010, and the Director rejected his torture claim on 24 August 2011. The applicant did not appeal against that decision. Thus, the applicant’s Torture Risk had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.
Amendments
5. In Form 86, the applicant named “Immigration department” and “Torture Claims Appeal Board” as both the putative respondents and the putative interested parties.
6. In fact, only the Board should be named as the putative respondent and the Director should be the putative interested party.
7. As aforesaid, the applicant had confirmed that the Board’s Decision was the decision in respect of which relief is sought in the Leave Application.
8. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 24 September 2020”.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed or seriously harmed by people from the Pakistan Peoples Party (“PPP”), who believed he was involved in killing two of their party members.
11. The applicant further claimed that he was a wanted person in Pakistan, since a warrant of arrest had been issued against him, on the basis of a First Information Report (“FIR”) issued by the Station House Officer of Rehmania police station, District Gujrat on 19 January 2011. The FIR was based upon a formal complaint by one Adnan Iqbal registered in Rehmania police station on the same date. Therefore, as a wanted person, the applicant claimed that he would be arrested by the police if he was refouled to Pakistan.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application and his case was heard on 19 August 2025.
13. When this court asked the applicant for the grounds for his intended judicial review, the applicant did not give any grounds but just said that he was trying to get some evidence back from his home country. His situation was very bad and he asked for more time to get the documents from his country. He added that he disagreed with the Board’s findings as the Board mentioned that his evidence was not enough and his life was not in danger.
Grounds for judicial review
14. 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).
15. However, the applicant did not assert any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 6 October 2020. He merely stated in the affirmation that he was not satisfied with the Board’s Decision and he wanted to stay in Hong Kong because his life was dangerous in his home country in Pakistan. He wanted to stay in Hong Kong until he finished his problem.
16. As aforesaid, at the oral hearing, the applicant only asked for more time to submit evidence which he was trying to get from his home country.
Discussion
17. First of all, if the applicant intends to submit new evidence to this court for consideration of his non-refoulement claim, it is not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
18. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
19. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.
20. 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).
21. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
22. In assessing the appeal by the applicant, the Board arranged an oral hearing on 30 October 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
23. The Board found that the two incidents which the applicant referred to as being attacked by people of the PPP and the resulting single injury of a broken finger were minor and did not amount to severe pain or suffering and did not attain the minimum level of severity to qualify as torture.
24. The Board also found significant inconsistencies and contradictions in the applicant’s evidence as mentioned in paragraphs 16, 17 and 22 of the Board’s Decision. As stated in paragraphs 18 to 21 of the Board’s Decision, the Board concluded that the people from PPP did not intend to kill the applicant and their purpose was rather to frighten him and not to cause him serious injury.
25. The Board rejected the applicant’s evidence of (1) a letter/certification from one Adil Faiz, Advocate of the High Court; (2) a FIR; and (3) a Warrant of Arrest, as they were not authentic. Significantly, the Board noted that the events stated in the FIR took place on 19 January 2011 when the applicant was already in Hong Kong. Hence, the applicant could not possibly have taken any part in those events. The applicant’s name was also not mentioned at all in the FIR.
26. The Board was of the view that state protection was available to the applicant, and that it would not be unduly harsh for the applicant, being a single, 35-year-old man with 8 years of formal education and about 9 years’ experience as a casual worker, to avoid returning to his home area. The applicant could relocate to a city or area such as Lahore or Islamabad, well away from his home area, where he would not encounter the PPP workers who troubled him some 10 years ago, and it would be highly unlikely for them to search for him there.
27. Having considered all the evidence, the Board found that the applicant had failed to establish, to even the low standard required, that there were substantial grounds for believing that if he were refouled to Pakistan, there would be a real and personal danger that he would be subjected to BOR 2 Risk, BOR 3 Risk and Persecution Risk.
28. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
29. For the sake of completeness, this court noticed that the adjudicator of the Board, Mr Bernard Whaley, 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 his capacity.
30. Mr Whaley was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.
31. 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.
32. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Whaley was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.
33. 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.
34. 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
35. For reasons aforesaid, the Leave Application is dismissed.
Dated the 31st day of October 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:
31 October 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: 31 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 9482/17/12/149/P1849
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2257/17
(Formerly RBCZ 10309/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[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 principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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