Anwar Muhammad Attique v. Torture Claims Appeal Board

HCAL 356/2020

[2025] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 356 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;

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 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 10 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 16 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/HCAL000356_2020_files/the_Board's_Decision.pdf

2.The Board found the applicant failed to substantiate that he qualified for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 December 2018.

Amendments

3.The applicant named both the Board and the Non-refoulement Claims Petition Office as the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only 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 the name of the putative interested party is amended to “Director of Immigration”.

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 be killed by a man named Zafar Iqbal (“Zafar”) and his son named Asad, as the applicant’s cousin named Babar killed Zafar’s another son named Mudassar in a cricket match.  The applicant did not kill Mudassar but was targeted because Babar lived with the applicant and disappeared.

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 10 March 2020.  The applicant merely stated in his affirmation that he did not agree with the Board’s Decision and his case was all true.

Discussion

15.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).

16.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.

17.In assessing the applicant’s appeal, the Board held an oral hearing on 20 December 2019.  After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant was not a witness of truth.  He gave two significantly different accounts of how Mudassar was killed, but he claimed to have taken no part in the death of Mudassar in both versions of his story.  The Board found that both versions of the applicant’s story were made up and there was no reason that he would be pursued by Zafar as if he were the killer.  The Board concluded that the applicant did not face any real or substantial risk of any of the proscribed harms under the USM. 

18.Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

19.As to 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).

20.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.

21.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.

22.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. 

23.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 leave must be refused.

Conclusion

24.For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 15^thday 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