SHAH SAEED v. TORTURE CLAIMS APPEAL BOARD

HCAL 804/2020

[2025] HKCFI 3836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 804 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 and oral 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 “Director of Immigration” be added as the putative interested party. 

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 4 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect the decision of the Torture Claims Appeal Board (“the Board”) dated 24 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/HCAL000804_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 16 January 2018, which rejected the applicant’s non-refoulement claim.

3.  The applicant had previously made a torture claim. The Director rejected his torture claim on 29 November 2013. The applicant did not file an appeal against that decision. Thus, his Torture Risk[4] had been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

4.  The applicant named “Torture Claim Board. Appeal Board” as the putative respondent and did not name any putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  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.

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 because if returned to Pakistan, people from the Pakistan Muslim League (Nawaz) (“PMLN”) or a Dr Ali, a hit man engaged by PMLN, would harm or kill him, due to his support for the opposition party Pakistan Peoples’ Party (“PPP”) and his refusal to join PMLN.

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 his intended judicial review in Form 86, nor in his supporting affirmation dated 4 May 2020. The applicant merely stated in his supporting affirmation that he was facing some serious troubles in his country and he would go back if his problem was solved.

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, the applicant cannot ask this court to re-assess the facts of his case including his alleged danger in Pakistan, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

12.  The applicant was afforded an oral hearing before the Board on 10 June 2019 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.

13.  The Board questioned the applicant for details but did not regard his claims that the PMLN people in his area engaged a hit man to kill him because of his success in persuading people to vote for PPP to be credible. The Board therefore found his claim that a hit man would kill him should he return to Pakistan to be unfounded.

14.  Even if his claims as to the events before he left his home village in Pakistan were accepted as true, the applicant had no idea what would happen were he to return now (ie at the time of the Board’s hearing). Given that PMLN was no longer in power, the former PPP supporters mostly belonged to the Pakistan Tehreek-e-Insaf which was in government, and the alleged hit man had not been heard since 2014, the Board did not find that the applicant would face a real risk of serious harm or death should he return to Pakistan.

15.  As held by the Court of Final Appeal in Ubamaka Edward Wilson v. Secretary for Security and Another (2012) 15 HKCFAR 743, the risk of the applicant should be assessed 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. The Board was thus correct in making its assessment based on the applicant’s current situation.

16.  The Board did not consider availability of state protection and viability of internal relocation. However, as it was the Board’s finding that the applicant did not face a real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider the availability of state protection.

17.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

18.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

19.  The assessment of evidence, country of origin information 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.

20.  Thus, the applicant’s alleged danger had been duly assessed and rejected by the Board.

21.  For the sake of completeness, this court noticed that the adjudicator, Mr Bruce Henry, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

22.  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.

23.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Henry was indeed a member of the Board and did have the power to determine the applicant’s petition.

24.  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.

25.  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

26.  For reasons aforesaid, 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