IMRAN SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 771/2020

[2025] HKCFI 4596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 771 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant or counsel in open court;

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 to withdraw the application for leave to apply for judicial review be refused.

3.      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 27 April 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 16 April 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/HCAL000771_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds including Persecution Risk[1], BOR 3 Risk[2] and BOR 2 Risk[3] under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused his petition and confirmed the decision of the Director of Immigration (“the Director”) dated 25 July 2018.

3.  The applicant made a torture claim previously in 2009, which was rejected by the Director on 26 November 2013.  The applicant did not file any appeal against that decision.  Thus, the applicant’s Torture Risk[4]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

4.  In Form 86, the applicant named “Miss HidaLau” as the putative respondent, when the Board should be the putative respondent. 

5.  He also named the Board as the putative interested party, when the Director should be so named.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to Pakistan, he would be harmed or killed by family members of his girlfriend named Maria, as her family opposed to their relationship.

Withdrawal of the Leave Application

9.  By way of a letter dated 30 July 2025, the Director informed this court that the applicant applied to withdraw his judicial review application by way of his letter dated 21 July 2025.  In the said letter, the applicant stated that:-

“I would like to withdraw my judicial review application under reference (_____). Please withdraw all my cases in Hong Kong as I want to return to my home country as soon as possible. My issues in my home country have been resolved, and I can return home.”

10.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

13.  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).

14.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 27 April 2020. 

Discussion

15.  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).

16.  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.

17.  The applicant was afforded an oral hearing before the Board on 8 January 2020 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

18.  As can be seen from the Board’s Decision, the Board did examine the applicant’s claims in details and questioned the applicant regarding his claims extensively.  Having considered all the evidence, and having regard to factors which might have adversely affected the applicant’s capacity to put forward his claims, the Board had significant doubts as to whether the applicant was telling the truth about the reasons for his departure from Pakistan and his claimed unwillingness to return.

19.  Despite the multiple inconsistencies between the applicant’s oral and written evidence, the Board was willing to accept that the applicant had some sort of relationship with Maria, a woman in his village, and that her family was not happy about that.  The Board was also willing to accept that the applicant was warned by Maria’s brothers not to pursue the relationship, and that he was assaulted by them on one occasion, but did not sustain serious injuries, if any.

20.  However, the Board found that Maria’s brothers had no real intention to inflict serious harm on the applicant, other than to warn him off.  There was also no evidence to suggest that they attempted to locate the applicant after he left the village, during the period of some three to four months that he remained in Pakistan, staying in other areas with a friend and relatives; nor had they continued to cause problems for the applicant’s family, who remained in the village.  The applicant’s evidence that he had not discussed his situation with his family members during the time he had been in Hong Kong, and knew nothing about Maria or her situation, indicated further that the matter was concluded and there was no ongoing risk to his safety.

21.  Given the passage of some ten years during which the applicant had not pursued a relationship with Maria, the Board was not satisfied that there was any real risk that the applicant would face serious harm at the hands of Maria’s brothers if he were to return to Pakistan.

22.  Even if the Board were to accept that there was some small risk that the applicant might face some minor harm in his village, the Board was satisfied that he could avoid that if he were to relocate to another area.  Given his education and his capacity to support himself or to obtain assistance and support from his own family members, the Board was satisfied that it would be neither unreasonable nor unduly harsh to require the applicant to relocate to another area of Pakistan, such as one of the large cities of Islamabad or Lahore.

23.  In view of the Board’s findings as summarized above, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds including Persecution Risk, BOR 3 Risk and BOR 2 Risk under the USM.

24.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

25.  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.

26.  Thus, there is no merits in the Leave Application at all.

27.  Moreover, as the applicant had confirmed that his issues in his home country had been resolved and he could return home, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

28.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

29.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as his issues in his own country had been resolved.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

30.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

31.  For the sake of completeness, this court noticed that the adjudicator of the Board, Ms MATHLIN Rosemary, 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 her capacity. 

32.  Ms MATHLIN was a member of the Board and she was determining the applicant’s petition in her capacity as a member of the Board.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to her.  She 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.

33.  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.

34.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Ms MATHLIN 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 herself as an adjudicator of the Non-refoulement Claims Petition Office.

35.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

36.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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