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HCAL 226/2020
[2025] HKCFI 1607
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 226 OF 2020
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Subkhani Farooq |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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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”, and the name of the putative interested party be amended to “Director of Immigration”.
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 21 January 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 13 January 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000226_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 19 October 2018 accordingly.
Amendments
3. The applicant named both the Board and the Director as putative respondents and the Board as 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. 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
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because his life was in danger both from a Kashmiri separatist organisation/group called Liberation Front (“LF”) of which he was a member and from Pakistani agencies or others who opposed LF.
Grounds for judicial review
7. 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).
8. However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 21 January 2020.
Discussion
9. 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).
10. In assessing the appeal by the applicant, the Board arranged an oral hearing on 7 November 2019. The Board found the shortcomings in his evidence were both so central to his claims and so numerous that it was unable to accept his account. The Board found the applicant not to be a witness of truth and rejected his claims in its entirety, with the exception of one piece of new information that was presented to the Board at the hearing.
11. The applicant raised a new claim at the hearing before the Board that his family had been involved in litigation over a property dispute in Pakistan. The Board accepted on balance that this problem did occur. However, given that the applicant conceded that the dispute had been resolved in his mother’s favour following a court hearing and that his family members had not suffered any serious or significant harm due to the dispute, the Board found that there was no appreciable risk for the applicant for this reason.
12. After due consideration of the law and the evidence of the applicant, the Board came to the conclusion that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan. The applicant was not entitled to non-refoulement protection on any of the applicable grounds (except Torture Risk under Part VIIC of the Immigration Ordinance, Cap 115) under the USM.
13. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
14. Although the Board did not re-assess the Torture Risk under Part VIIC of the Immigration Ordinance, it was unnecessary to consider the same, as the Director had already considered and refused his claim on Torture Risk previously on 6 June 2013, and there was no petition against that refusal.
15. 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 error 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.
16. 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 applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
17. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of April 2025
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( Thomas Chan )
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 his 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: 25/4/2025
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: 25/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14147/18/10/489/P2811
Director of Immigration
Putative interested party’s ref. no.: QA T/C 3648/18 (formerly as RBCZ 2000841/14), QA T/C 913/12 (formerly RBCZ 809/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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