Am v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1425/2021[2025] HKCFI 321

Court

High Court CFI

Date16 Jan 2025

Judge—

Case Document

100%

HCAL 1425/2021

[2025] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1425 of 2021

BETWEEN
	AM	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and oral submissions by the Solicitors for the Applicant in open court;

Order by Deputy High Court Judge To:

1. Leave to apply for Judicial Review be granted; and

2. The Court makes no order as to costs, save that the Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations .

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 12 October 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 July 2021 (the “2021 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 September 2017 (the “2017 Notice”). He was granted legal aid in August 2024 and granted leave to amend the Form 86.

Background

2.The Applicant is a Pakistani national, now aged 49. He is married. He sneaked into Hong Kong from Mainland China on 5 April 2012. He made a torture claim under Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) by way of a written significant dated 7 April 2012. His Torture Claim was rejected by the Director on 9 July 2012. His appeal against the Director’s decision was dismissed by the Board on 15 October 2012. That decision is now final.

3.On 28 February 2014, he made a non-refoulement claim under the under the Unified Screening Mechanism (“USM”). In gist, he claims, if returned to Pakistan, he would be harmed or killed by members of Khatam-e-Nabuwat (“KeN”). His non-refoulement claim was assessed under all applicable grounds other under the USM other than the ground considered under his Torture Claim, namely: BOR 2 Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. By the 2017 Notice, the Director rejected his claim. His appeal against the 2017 Notice was dismissed by the Board’s 2021 Decision. He now applies for leave to apply for judicial review of the 2021 Decision.

Decision

4.Having read the Decision, the amended Form 86 and all the papers, and having heard counsel’s submission, this Court is satisfied that the grounds of the proposed judicial review are arguable and the proposed review has prospect of success. Accordingly, leave is granted to the Applicant to apply for judicial review on the grounds as stated in the Amended Form 86.

5.The Court makes no order as to costs, save that the Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

Dated 16^th day of January 2025.

(Seline Sze)
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:
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)).		Sent to the Applicant on 16/01/2025 AM Applicant’s ref. no: Nil.		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 16/01/2025 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8633/17/9/305/P1704 Director of Immigration Putative Interested Party’s ref. no.: Qa t/c 1303/14 T7S106 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol