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HCAL 1110/2020
[2025] HKCFI 3444
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1110 of 2020
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BETWEEN
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Hussain Majid |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative
Respondent |
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and |
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Director of Immigration |
2nd Putative |
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Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the 1st Putative Respondent; and
b. the Director of Immigration be named as the 2nd Putative Respondent.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 5 June 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 2 April 2020 (the “Board’s Decision”); and (ii) the decision of the Director of Immigration (“Director”) dated 8 October 2018 (the “DOI Decision”).
2. As the Applicant purports to challenge both the DOI Decision and the Board’s Decision, I made an order on my own motion to amend the Form 86 accordingly.
3. An oral hearing was requested by the Applicant. It took place before me on 17 July 2025 (the “Hearing”) and the Applicant attended in person.
Background
4. The Applicant’s background, the basis and history of his claim and the arguments he advanced are set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the basis of the Applicant’s claim is that he will be killed by individuals affiliated with the Pakistan People Party (“PPP”) if he is returned to Pakistan.
Discussion
5. The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Factual matters such as assessment of country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14).
6. In the supporting affirmation accompanying the Form 86, the Applicant advanced the following grounds of review:-
(1) Without providing any particulars, the Applicant alleged that the Director and the Board had erred in a Wednesbury unreasonable manner.
(2) The Board had failed to give the Applicant sufficient time and chance to adduce relevant evidence.
(3) The Director had failed to consider the issue of state acquiescence in the context of the Applicant’s torture claim.
(4) The Director had failed to consider COI materials which suggest that (i) the police in Pakistan would not be able to protect the Applicant; (ii) there were serious issues of corruption and incompetence in the Pakistan government.
7. At the Hearing, the Applicant said he had nothing to add to his application.
8. At the outset, I should point out that the proposed review against the DOI Decision is untenable. It is well established that the proceedings before the Board are conducted by way of rehearing and that once the Board’s Decision is made, it effectively supersedes the DOI Decision, see: Re Moshin Ali [2018] HKCA 549 at §45. Notwithstanding the above, I shall consider the Applicant’s grounds of review insofar as they apply to the Board’s Decision.
9. In respect of complaint (1):-
(1) Having reviewed the Board’s Decision which contained a meticulous analysis of the evidence (Board’s Decision §§20-148), I am satisfied that the Board is entitled to find that the Applicant did not face any real risk of serious harm if he is returned to Pakistan given the various inconsistencies in his evidence for which the Applicant was unable to provide any reasonable explanation. The Board is entitled to find that the Applicant had fabricated his factual account, see: Board’s Decision §§138, 146.
(2) The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.
10. In respect of complaint (2), the Applicant confirmed with me at the Hearing that in fact there was no other evidence that he would like to adduce. Hence, the complaint is groundless.
11. Given the Board’s factual findings above which are not assailable, complaint (3) is not apposite. In any event, the Board in fact dealt with the issue of state acquiescence and rightly concluded that there was no evidence to support any such allegation in the circumstances of the Applicant, see: Board’s Decision §§154-163.
12. Concerning complaint (4), the Board had properly considered the relevant COI materials with reference to the personal circumstances of the Applicant in reaching its conclusion that state protection was available, see: Board’s Decision at §§174-178. It is not the role of the court in judicial review to revisit this factual finding and in any event I do not find any basis to do so.
13. Finally, I would also add that the Board was plainly right to conclude that reasonable internal relocation alternatives were available to the Applicant given that he was an able-bodied adult with reasonable education and working experience. After all, Pakistan is a large country and the influence of the PPP was limited to the Applicant’s locality (§§179-185).
14. In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Leave for judicial review is refused.
Conclusion
15. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 8th day of August 2025
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(Edison Ho)
for Registrar, High Court
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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 to the Applicant
on 8/8/2025
Hussain Majid
Applicant’s ref. no:
Nil |
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Sent 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 8/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative 1st Respondent’s ref. no.:
USM 13993/18/10/335/P2776
Director of Immigration
Putative 2nd Respondent’s ref. no.: QA T/C 3376/18 [T9175]
(formerly RBCZ 10685/17) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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