ASIM BASHIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1857/2019

[2025] HKCFI 2464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1857 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Asim Bashir (“Applicant”) for leave to apply for judicial review.

2.  In the Form 86 filed herein on 3 July 2019 (“Form 86”), the Applicant named the Torture Claims Appeal Board (“Board”) and the Director of Immigration (“Director”) as proposed respondents.

3.  In the section for “Judgment, order, decision or other proceeding in respect of which relief is sought” in the Form 86, the Applicant put:

“The Decision of the Director of Immigration dated

The Decision of the Adjudicator dated 27 June 2019”

4.  In the supporting affirmation also filed on 3 July 2019 (“Affirmation”), the Applicant produced a letter dated 27 June 2019 from the Board and described that as “Copy of Torture Claim Appeal Board decision”.

5.  He further exhibited to the Affirmation a statement entitling “Grounds on which Relief is sought” (“Statement”). In the Statement, the Applicant put forward the following grounds in support of his intended judicial review:

(1)  the Director and the Board wrongly assessed his non-refoulement claim (“Claim”);

(2)  the decisions of the Director and the Board were not reasonable and unfair;

(3)  the Board failed to give him sufficient time and chance to arrange relevant evidence for the Claim as well as the appeal;

(4)  the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case;

(5)  the Director had failed to consider or give enough weight to country of origin information in support of the Applicant’s aversion that the police in his country would not be able to protect him;

(6)  corruption and incompetency of the administration in his country was still a very serious problem; and

(7)  the Director was unfair and failed to attain the high standard of fairness required by the Wednesbury test.

6.  No supporting document was exhibited to the Affirmation.

Procedural history

7.  In this case, the Applicant lodged his claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”) by written representation dated 28 April 2008. Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the CAT Claim was taken to be a non-refoulement claim (i.e. the Claim) and was assessed under the USM then in place.

8.  On 24 March 2015, the Director issued his decision refusing the Claim (“DOI Decision”).

9.  The Applicant subsequently appealed against the DOI Decision to the Board (“Appeal”).

10.  By a letter dated 20 November 2015 addressed to the Board (“Applicant’s Letter”), the Applicant stated that: “I Asim Bashir would like to withdraw my Appeal/Petition because I am safe to return my country Pakistan.”

11.  By a letter dated 23 November 2015 (“Board’s Letter”), the Board informed the Applicant that:

“By your letter dated 20 November 2015 to the Torture Claims Appeal Board (“the Board”)/Adjudicator of the Non-refoulement Claims Petition Office, you have decided to withdraw your appeal/petition against the decision of an immigration officer as contained in the notice of decision attached to your Notice of Appeal/Petition.

Upon your application to withdraw the appeal/petition, the Board has directed that your appeal/petition be dismissed on the ground that you are safe to return to your country.

Please note that your appeal/petition is therefore treated by the Board/Adjudicator as having been disposed of and finally determined. No further action will therefore be taken by the Board/Adjudicator in respect of your appeal/petition. The hearing scheduled for 1 December 2016 will be vacated.”

12.  By a letter dated 19 June 2019 (“Request”), the Applicant requested the Board to reopen the Appeal stating that:

“I have previously withdrawn my appeal as I thought I would be safe in my country, but I am informed by my friend last week that my enemies have abducted my cousin and asked for my whereabouts. After getting to know that I was in Hong Kong, they beaten up my cousin resulting in breaking his legs.

I am afraid to loose [sic] my life if I go back to my country. Please give me a chance to present my case in front of you.

I request you once again to re-open my appeal.”

13.  By the letter dated 27 June 2019 exhibited to the Affirmation (“Board’s Decision”), the Board replied that:

“A letter was sent to you dated 23 November 2015 [i.e. the Board’s Letter] in which you were informed, at your request, that your appeal/petition has been dismissed. The Board had confirmed the Decision of the Director of Immigration dated 24 March 2015 [i.e. the DOI Decision]. The Decision of the Board/Adjudicator is final. No further action will be taken in respect of your appeal/petition.”

This application

14.  The Form 86 suggested that the Applicant sought judicial review of both the DOI Decision and the Board’s Decision.

15.  In the Affirmation, the Applicant only exhibited the Board’s Decision and the Statement.

16.  The Applicant attended the court hearing of 24 April 2025 (“Court Hearing”) and confirmed that he sought leave for judicial review of the Board’s Decision, i.e. the decision refusing to re-open the Appeal.

The Board’s Decision

17.  By the Board’s Decision, the Board declined to reopen the Appeal on the ground that the Appeal had been dismissed by the Board’s Letter upon the Applicant’s application to withdraw the Appeal. The Board decided that no further action would be taken in respect of the Request.

18.  In Re: Ali Usman [2018] HKCA 955, the Court of Appeal confirmed that HT v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567 was rightly decided and that the functus principle applied to the Board in relation to a validly withdrawn claims.

19.  In HT v Betty Kwan (supra), the court adopted the approach of the UK’s Asylum and Immigration Tribunal to withdrawals of appeals in Ap v Secretary of State for Home Department [2007] UKAIT 00022. [2018] INLR 118, in which it was sought to reopen an appeal which had been withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one, i.e. whether it was the result of a deliberate and informed decision.

20.  The Board relied on the Applicant’s Letter to allow the Applicant to withdraw the Appeal. The Applicant applied to withdraw the Appeal on the ground that it was then safe for him to return to Pakistan. There was nothing suggesting that the withdrawal application of the Applicant was not the result of a deliberated and informed decision.

21.  The Applicant confirmed at the Court Hearing that he considered that it was safe for him to return to Pakistan in 2015 when he made the withdrawal application by the Applicant’s Letter. He had been informed only in 2019 that it was not safe for him to return. As such, the Applicant’s withdrawal application by the Applicant’s Letter was the result of a deliberate and informed decision. The withdrawal of the Appeal was a valid one.

Discussion

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. … … The 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

24.  In the Board’s Decision, the Board held that the decision of the Board in allowing the Applicant’s withdrawal application was final and refused to reopen the Appeal. As the Court of Appeal held in Re: Ali Usman (supra), upon acceptance of the withdrawal by the Board, the Board would have no further function to perform and would be functus officio.

25.  The Applicant was unable to identify at the Court Hearing any error of law, procedural unfairness or irrationality in the Board’s Decision in refusing to reopen the Appeal.

26.  The grounds referred to in the Statement were irrelevant to the Board’s Decision of refusing to reopen the Appeal. In fact, it had never been necessary for the Board to consider the Claim or the Appeal as the Appeal had been validly withdrawn. The other complaints were complaints against the Director in dealing with the Claim.

27.  The Applicant claimed that he would be harmed or even killed by a man, known as Afaq, because the Applicant refused to sell a piece of land to him.

28.  The Director assessed the Claim on the following grounds under the then USM, namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  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; and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

29.  By the DOI Decision, the Director refused the Claim.

30.  The Applicant had appealed against the DOI Decision to the Board, albeit subsequently withdrawn. The Court of Appeal had also pointed out in Re: Ali Usman (supra) at §21 that “this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”.

31.  In this case, the Applicant had invoked the appeal/petition process. Although the Appeal was withdrawn subsequently, I am of the view that the principle set out in Re: Ali Usman (supra) shall still apply as I have found that the withdrawal was a valid one.

32.  I see no reasonably arguable ground for the Applicant to seek judicial review of the DOI Decision in this case.

33.  No proper ground for the intended challenge was stated in the Form 86 and/or the Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in refusing to reopen the Appeal, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  The Board made its decision based on the finding that its earlier decision of granting the Applicant’s withdrawal application was valid and final. I see no error of law, nor procedural unfairness or irrationality in the Board’s aforesaid finding.

35.  Having rigorously examined the Board’s Decision with anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality in the Board’s Decision. I am satisfied that the Board had observed high standards of fairness in dealing with the Request. The Applicant does not have any reasonably arguable case to challenge the Board’s Decision.

Conclusion

36.  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 reasonably arguable claim which enjoyed realistic prospects of success.

37.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness on the part of the Board in refusing to reopen the Appeal, and as I am not satisfied that the Applicant’s intended judicial review, whether against the DOI Decision or the Board’s Decision, is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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

Form CALL-1