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HCAL 3538/2019
[2025] HKCFI 4499
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3538 OF 2019
BETWEEN
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Mahmood Asaan |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 20 November 2019”.
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 28 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 20 November 2019 without identifying the decision maker. He attached a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 November 2019 (“the Board’s Decision”) to his supporting affirmation dated 28 November 2019. It is clear that the applicant was referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003538_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 May 2018.
Amendments
3. In Form 86, the applicant named himself as the proposed respondent and did not name any interested party, when the putative respondent should be the Board and the putative interested party should be the Director.
4. 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.
5. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision. Thus, it is so amended on this court’s own motion.
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 as he feared that if he returned to Pakistan, he would be killed or harmed by his neighbor, Ansar, who wanted to take over his land.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 6 August 2025.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 28 November 2019. The applicant merely stated in the affirmation that he was not satisfied and his life was still in danger in Pakistan.
Discussion
13. 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).
14. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. The Board did not hold an oral hearing in assessing the appeal/petition by the applicant. The Board had considered the principles and circumstances under which an oral hearing is required as set out in St v Betty Kwan and Another, CACV115/2013, dated 26/06/2014. After reviewing the whole case, the Board found that, no worthwhile or effective representation could be made and there would be no procedural unfairness to the applicant if his appeal was determined without an oral hearing. Hence, the Board decided to determine the appeal on paper.
16. The Board found that the low intensity of past ill-treatment by Ansar suggested a small future risk of harm upon his return to Pakistan. The injuries the applicant sustained in the attacks were minor and did not require hospitalization. He was alone and was attacked by Ansar and his armed men. They could easily kill him if they wanted, but they did not do him further harm and left. There was nothing to suggest Ansar, who had already occupied the applicant’s land for years, would seek to harm or kill him after 9 years (at the time of the Board’s Decision).
17. The Board found no evidence of government or person acting in an official capacity being involved in the land dispute at all. Ansar was not a public official. The applicant claimed that the local police would not care about his case, and he believed that Ansar’s uncle had influence on the police. However, it was purely the applicant’s speculation without evidence to support his belief. The inaction of the local police did not necessarily imply the misconduct of the Pakistani police as a whole. There was no evidence that the Pakistani authority would fail to discharge its duties or tolerate any unlawful and allusive behaviour committed by an individual as systemic practice.
18. In assessing the availability of state protection and 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. While there were information showing the problems of corruption by government officials and police inefficiency, there were also reliable COI showing on-going reforms with positive results, and legal protection was available to citizens of Pakistan. The Board considered that reasonable state protection was available to the applicant if he resorted to the Pakistani authorities after his return.
19. The Board noted that internal relocation would only arise if the applicant had established a real risk of persecution in his home area, which the applicant had not. However, if the applicant had shown such a risk, the risk was confined to his local area and alternatives were available and reasonable, which would further lower or negate the perceived risk.
20. In assessing the viability of internal relocation, the Board noted the applicant’s assertion that he was unable to relocate to other places in Pakistan because it was unsafe and he did not have the financial ability and work experience to earn a living. However, the Board found his belief of having difficulty in looking for employment was just his own speculation. Internal relocation was permissible in Pakistan. The applicant had many options for relocation in Pakistan. It would be very difficult for Ansar to locate him among such a large population in such a large country. Moreover, since the applicant only had contact with his parents in Pakistan, Ansar could not have known his return to other places in Pakistan.
21. The Board also addressed the applicant’s concern in having difficulty in looking for employment. The Board found the availability of skills trainings provided by government authorities would equip him with necessary skills and knowledge for employment. Being an able-bodied young adult with 6 years of farming experience, the applicant could work anywhere. If the applicant needed to, he could reasonably relocate to elsewhere in Pakistan and earn a living there.
22. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. This court also agrees with the Board that there was no need to have an oral hearing in the applicant’s case, as the applicant had clearly raised all the relevant matters to the Board on paper.
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 23rdday of September 2025
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( Irene LEE ) |
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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:
23 September 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:
23 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11923/18/6/102/P2318
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1749/18
(formerly RBCZ 12028/16) (T9I65)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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