HCAL 170/2020

[2020] HKCFI 2520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 of 2020

BETWEEN
Ali Ghazenfar Applicant

and

Torture Claims Appeal Board Putative 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 the documents only; or

 consideration of the documents and oral submissions by (counsel for) the Applicant in
open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1. The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on
9 May 2016 and surrendered to the Immigration Department on 13 May 2016 then he raised a
non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed
by his uncle due to their family’s land dispute.
2. By a Notice of Decision dated 28 September 2018 the Director of Immigration (“The
Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture
under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or
non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”)
being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel,
inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and
risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951
Convention Relating to the Status of Refugees (“persecution risk”).
3. In his decision the Director took into account of all the relevant circumstances of the
Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to
Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was
a private family dispute between them without any official involvement that state or police
protection would be available to the Applicant if resorted to, and that reliable and objective
Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are
available in Pakistan with a large population of 205 million people spread across a vast territory

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of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as
an able-bodied adult with working experience to move to other part of Pakistan away from his
home district in large cities such as Islamabad where it would be difficult if not impossible for
his uncle to locate him.
4. On 8 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board
(“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19
November 2019 before the Board during which he gave evidence and answered questions put to
him by the Adjudicator for the Board. On 9 January 2020 his appeal was dismissed by the
Board which also confirmed the decision of the Director.
5. On 16 January 2020 the Applicant filed his Form 86 for leave to apply for judicial
review of the Board’s decision, but no ground for seeking relief was given in his Form, and in
his supporting affirmation of the same date he merely attached copies of the previous decisions
without putting forward any proper ground for his intended challenge.
6. However, before his application could be dealt with by the court, the Applicant on 17
September 2020 filed an affirmation requesting to withdraw his application because his uncle
has offered to settle their dispute with his family.
7. In the premises, and as the basis of his claim no longer exists, it would be appropriate
that his application be dismissed rather than withdrawn. Accordingly, I accede to the
Applicant’s request and dismiss his leave application.

Dated the 14th day of October 2020. (TAM Kam-man)

for Registrar, High Court

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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 Sent to the Applicant on Sent to the Putative Respondent
and such interested 14th October 2020 / the Putative Respondent’s
parties as may be solicitors / such Putative
directed by the Court the Ali Ghazenfar Interested Parties as may be
order granting leave and directed by the Court / the
any directions given Applicant’s ref. no.: Putative Interested Parties’
within 14 days after the Nil. solicitors on 14th October 2020
leave was granted
(Order 53, rule 4A); Torture Claims Appeal Board
Putative Respondent’s ref. no.:
b) issue the originating USM 13791/18/10/133/P2733
summons within 14 days
after the grant of leave Director of Immigration
and serve it in Putative Interested Party’s ref.
accordance with Order no.:
53, rule 5; and QA T/C 3226/18 (formerly
RBCZ/12807/16)
c) supply to every other
party copies of every Department of Justice,
affidavit which the Senior Assistant Law Office
Applicant proposes to (Civil Law)
use at the hearing, (Civil Litigation Unit 2)
including the affidavit in
support of the
application for leave
(Order 53, rule 6(5)).

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Form CALL-1