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

HCAL 1331/2020

[2025] HKCFI 5725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1331 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 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 (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party, and substituting “USM 11458/18/5/43/P2226 dated 18 May 2020” in place of the words “The Torture Claims appeal Board Gave me unfair decision at 8^th September 2017”;

2.  Leave be granted to apply for judicial review of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office USM 11458/18/5/43/P2226 made on 18 May 2020;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, Rule 5 of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as respondent, and on the Director of Immigration as interested party.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Pakistan. By a Form 86 filed on 29 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 29 June 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”).

2.The Applicant had originally said in the Form 86 and Affirmation that he sought leave in relation to a decision USM 7472/17/6/168/P1482 made in relation to one “Mr HUSSAIN SADAM” made on 8 September 2017 (“USM 7472 Decision”), which was exhibited and referred to in the Affirmation.

3.However, having looked into the papers I raised with the Applicant the fact that the USM 7472 Decision actually related to a different person with the same name, and had already been the subject of another judicial review as filed by that other person in HCAL 820/2017, and on appeal CACV 820/2018 (Hussain Sadam v Torture Claims Appeal Board & anor. [2018] HKCFI 795, [2018] HKCA 483, and [2018] HKCA 698).

4.The Applicant accordingly confirmed to me in court that the decision relevant to him was, in fact, a decision of the TCAB/NRCPO being USM 11458/18/5/43/P2226 made on 18 May 2020 (“the TCAB Decision”)[1] and that he sought leave to apply for judicial review of the TCAB Decision. I told him (as to which he had no comments) that I would amend the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party, and to refer to the TCAB Decision. He said that he did not wish to make any other amendments to the Form 86, or to file another Affirmation in support of his application, but instead orally mentioned some grounds, which I have set out below.

5.I have therefore amended the Form 86 of my own motion, as above, to reflect the identity of the proper Putative Interested Party, and to identify the TCAB Decision. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

6.This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed that if he were sent back to Pakistan, he would be harmed or killed by the family of his girlfriend, Zarina, as he had wanted to marry her against their wishes;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 27 April 2018 (“Director’s Decision”);

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition, as to which a Notice of Hearing was issued to the Applicant to his last known address set out in his Notice of Appeal/Petition, with the hearing scheduled to take place on 15 January 2020; and

(4)  However, the Applicant failed to attend the scheduled hearing and on that date the TCAB/NRCPO was unable to contact him by phone. The TCAB/NRCPO applied the procedure in s. 15 of Schedule 1A, Immigration Ordinance (CAP. 115) and, as it had received no response in relation to such from the Applicant within the time limit, proceeded to determine the petition/appeal in his absence and issued the TCAB Decision on 18 May 2020, in which it rejected the appeal/petition on all applicable grounds and confirmed the Director’s Decision.

Legal Principles

7.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

8.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

9.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

10.The Form 86 merely set out that the Applicant was “not satisfied from his decision”, which in context as originally filed referred to the USM 7472 Decision. In court, the Applicant confirmed that he intended to rely on such ground in relation to the TCAB Decision. As I have mentioned, he said that he did not wish to amend the Form 86 or file another Affirmation[6] in support of his application for leave. Rather, he said that his grounds of judicial review were that he was “angry” and that he needed “some time” as his girlfriend (a domestic helper) stayed here, he wanted to marry her, and was seeking consent from her family. He also said that he was trying to contact Zarina to “finish the old case in Pakistan” and said that he had “lost everything including my memory”. He also claimed to me that he was so scared of his “enemy” in Pakistan that he had started drinking whisky and that it had affected his mental state.

11.I do not see that any of the above amount to grounds for judicial review, not least as they do not advance (let alone with requisite particulars referring to the facts) any allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

12.Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.Having done so, I have come to the conclusion, having had regard in particular to Paragraphs 29 to 31 of the TCAB Decision, Re Hidayah [2018] HKCA 595 at §§8 and 15, MS v Torture Claims Appeal Board & Anor [2021] HKCA 979 at §§14[7], 24 to 26, and the obiter explanation of the ratio of those cases in Ndumbi Paul Mulumba [2023] HKCA 847 §§36-40[8] that that there are the following reasonably arguable grounds of judicial review that arise given the context and circumstances of this case:

(1)  The TCAB/NRCPO erred in simply rejecting the Applicant’s case on the basis that as he did not attend the hearing and give oral evidence at such, it was unable to determine the credibility of his assertions, and was hence unable to determine whether there was a real risk or substantial grounds for suffering the harm he claimed to fear; and

(2)  The TCAB/NRCPO erred as it failed to give sufficient reasons for its decision as there was no elaboration on why the inability to determine the matters above should lead to a dismissal of the appeal/petition in circumstances where the TCAB/NRCPO had not made any finding and had made no adverse finding on the credibility of the applicant’s assertions or on whether there was a real risk or substantial grounds for suffering the harm he claimed to fear.

14.As this is only an application for leave, I shall refrain from commenting further on the merits of such arguments.

Conclusion

15.In the circumstances, I have granted leave on the basis of the grounds identified above made the orders as described above.

Dated the 15^th day of December 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