SHAKEEL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 377/2020

[2025] HKCFI 2908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 377 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 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 11 March 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 24 January 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/HCAL000377_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 27 December 2017, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board/Non-refoulement Claims Petition Office as the putative respondent and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

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 he feared that if returned to Pakistan, he would face harm from the opposing political party Pakistani Muslim League (N) (“PMLN”) as he was a member of the Pakistan Muslim League Qais-E-Azam (“PMLQ”). In particular, he claimed that he had a problem with a neighbour of his family who was a retired policeman and a member of PMLN.  This neighbour had falsely accused him of robbery but no charges had been laid against him.  Also, there were terrorist attacks all over Pakistan in 2015, and hence he decided to leave his country to save his life.

Withdrawal of the Leave Application

8.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 23 May 2025 to inform this court that the applicant had written a letter dated 16 May 2025 to withdraw his judicial review application.

9.  As stated in the applicant’s said letter, the reason he gave for this withdrawal application was that he wanted to return to his home country as soon as possible, the issues in his home country had been resolved and he could return home.

10.  There is no evidence to show that the applicant made the 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 or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

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 right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

13.  The applicant is required to identify clearly the grounds for his 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 provide any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 March 2020.  The applicant merely stated in his affirmation that he was not satisfied with the decision of the Immigration and his life would still be in danger in his home country.

Discussion

15.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).  Thus, this court will only deal with the Leave Application in respect of the Board’s Decision.

16.  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).

17.  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.

18.  In assessing the applicant’s appeal, the Board held an oral hearing on 14 January 2020.  After due consideration of the evidence and the oral testimony of the applicant, the Board found that the political situation in his area had changed completely since his departure, in that PMLN was no longer powerful in his area and that the police would follow PMLQ rather than PMLN because PMLQ was the party in power.  It also meant that any power of his neighbour was able to wield as a former policeman and PMLN supporter had gone.  In fact, the applicant himself was unable to articulate any reason for believing that he would be unable to seek protection from the police should this neighbour cause him any further problem.  The Board further found that the applicant would not be in danger because of terrorist activities in Pakistan, and that the population in general would not face a real risk of harm as a result of terrorist activities.

19.  Thus, the Board concluded that the applicant would not face any real or substantial risk of any of the proscribed harms under the USM should he return to Pakistan. 

20.  Although the Board did not consider the viability of 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).

21.  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.

22.  The assessment of evidence and risk of harm are primarily within the realm of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.  In fact, in view of the applicant’s latest confirmation that his problems in his home country had been solved, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

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.  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 a reasonably arguable claim which enjoyed 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 must be refused.

Conclusion

25.  For reasons aforesaid, the application for leave 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