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HCAL 962/2020
[2025] HKCFI 3229
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 962 OF 2020
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Khan Amir |
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 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 21 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 12 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/HCAL000962_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and affirmed the decision of the Director of Immigration (“the Director”) dated 23 October 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the adjudicator of the Board as the putative respondent and the Board as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.
4. 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”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, his family members, who are Sunni Muslims committed to the teachings of the Wahhabi sect of Islam, would harm him as he decided to convert to the Shia sect.
Oral hearing
7. 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 his life would be in danger if refouled because he changed his religious belief. The applicant confirmed that this danger was presented to the Board for consideration. He hoped that this matter could be settled before his return to Pakistan. Otherwise, he would have serious problem there.
Grounds for judicial review
8. 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).
9. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020. At the hearing before this court, he did not raise any ground other than to reiterate that his life would be in danger for the same reason that the Board had considered.
Discussion
10. 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).
11. 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.
12. In assessing the appeal by the applicant, the Board held an oral hearing on 9 December 2019. The applicant was present and was given the chance to present his case to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.
13. As can be seen from the Board’s Decision, the Board in fact accepted the applicant’s testimony regarding his risk of harm in his home area, but found that he could avoid the harm by relocating to a large city in Pakistan.
14. In assessing the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI’) for the applicant’s country from different sources. The Board considered that even taking the applicant’s evidence at its highest, there was nothing to suggest that his family members had the sort of influence that could stretch outside his home area throughout the whole country.
15. Besides, there was no evidence to suggest that anyone outside his family and his home area would have any knowledge of his conversion. Thus, the Board found that he could continue living his life as a member of the Shia sect in areas where he was not previously known and where a Shia community existed.
16. Moreover, there was no evidence that the Pakistan state had any interest in him. The Board concluded that as just a member of the Shia minority, it would not lead the applicant to suffer from serious harm in any potential place of relocation. The applicant was also highly educated to degree level and had many years of business experience in Pakistan and Europe. Hence, it would not be unduly harsh or unreasonable for the applicant to relocate to other parts of Pakistan.
17. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion that the applicant could avoid the harm by internal relocation. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
18. 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.
19. 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
20. 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 14158/18/11/1/P2814
Director of Immigration
Putative interested party’s ref. no.
QA T/C 4035/18 (formerly RBCZ 13478/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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