Iqbal Mudassar v. Torture Claims Appeal Board

HCAL 318/2020

[2025] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 318 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 in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 September 2015”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

Introduction

1.By way of Form 86 dated and filed on 5 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") made around 2018, but the applicant only knew about it in February 2020.

2.However, the Board did not make any decision in 2018 in respect of the applicant’s claim for non-refoulement protection. There was only one decision made by the Board in respect of the applicant’s claim on 11 September 2015 (“the Board’s Decision”).

3.During the oral hearing before this court on 22 April 2025, the applicant confirmed with this court that it was the Board’s Decision that he would like to apply for leave for judicial review. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000318_2020_files/the_Board's_Decision.pdf

4.The Board was not satisfied that the applicant faced a real risk of torture if refouled to Pakistan, and rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board therefore rejected the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 22 December 2014 (“the Director’s Decision”).

5.At that time, the applicant’s claim was assessed on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but BOR 2 Risk[4] was not assessed.

6.The Director subsequently assessed the applicant’s claim on BOR 2 Risk and gave a further decision on 13 February 2017 in which the applicant’s claim based on BOR 2 Risk was also rejected. The applicant did not appeal/petition against the Director’s further decision.

Amendments

7.In Form 86, the applicant did not name any putative interested party, when the Director should be the putative interested party.

8.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

9.Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 11 September 2015”.

Late application

10.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.However, the applicant filed Form 86 only on 5 March 2020, which was more than 53 months from the date of the Board’s Decision (made on 11 September 2015). The applicant was therefore late for more than 50 months in making the Leave Application.

12.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.The applicant did not make any application for extension of time when filing the Leave Application, but in Form 86, the applicant stated that the Board’s decision was made in around 2018 and he knew about the decision in February 2020.

14.At the oral hearing before this court on 22 April 2025, the applicant explained that the Leave Application was filed late because he was arrested by the police in 2019, and while in detention, he heard that his case was rejected by the Board. A lawyer assisted him in the filing of the Leave Application.

15.However, the applicant admitted that he attended a hearing in 2015 and he knew in 2015 that he needed to go back home. The applicant agreed that the Board must have told him to go home in 2015 and confirmed that the Board made the decision in 2015. He also admitted that he filed the Leave Application late because he was very scared that he would be sent back home.

16.The length of delay is very substantial and the reason for the delay given by the applicant is not satisfactory. As discussed below, there is also no merits of the intended judicial review. Thus, having considered the aforesaid criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.

17.The Leave Application can be dismissed on the ground of being made out of time alone. However, this court will also proceed to consider the merits of the Leave Application.

The applicant’s case

18.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.

19.In sum, the applicant claimed for non-refoulement protection because he stopped an unknown robber from running away before the police arrived when he was in Pakistan, and he feared that the robber and his friends would harm or kill him should he return to Pakistan.

Grounds for judicial review

20.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).

21.The applicant did not provide any ground for judicial review in Form 86. However, the applicant asserted in his supporting affirmation dated 5 March 2020 that he faced all these dangerous problems, harassment and torture in his country, the Director’s Decision was wrong because the Director rejected his claim without any proper inquiry and without carefully understanding his situation. If he did not run away, he certainly would have been killed by his enemies. His problems were getting more and more life-threatening day after day.

22.At the hearing before this court, the applicant also sought to rely on the ground that he has a son and a daughter in Hong Kong and asked this court to let him stay in Hong Kong.

Discussion

23.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. 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).

24.Thus, this court will only consider the Leave Application in respect of the Board’s Decision. The applicant’s allegations against the Director as stated in his supporting affirmation are irrelevant to the Leave Application.

25.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).

26.In assessing the appeal by the applicant, the Board held an oral hearing on 8 May 2015. The applicant was represented by a duty lawyer and was given the opportunity to present his case and grounds of appeal to the Board. The Board carefully examined the applicant’s evidence and questioned the applicant for details.

27.As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. In view of the contradictions identified in the applicant’s evidence, the Board believed that the applicant had exaggerated his fear of and the risks from the robber and his friends, and his mistrust of the Pakistani police was based on hearsay rather than personal experience.

28.The Board also found that the harm that the applicant suffered did not attain the minimum level of severity under the USM. Thus, the Board found that there were no substantial grounds for believing that the applicant would be subjected to torture if he were to be sent back to Pakistan.

29.Thus, the Board did consider thoroughly and carefully the applicant’s case and the alleged dangerous problems. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

30.At the hearing before this court, the applicant was unable to provide further evidence to show that the Board committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision. The fact that he has a son and a daughter in Hong Kong is irrelevant to the Leave Application.

31.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.

32.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

33.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

Dated the 8^th day of July 2025

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