HUSSAIN MANZAR v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1353/2020

[2025] HKCFI 5229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1353 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;

1.  The Form 86 is amended on the Court’s own motion, naming only the Non-refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “Non-refoulement Claims Petition Office” in place of “Adjudicator of TCAB” ; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 filed on 30 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 30 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (said by him to be one of the Torture Claims Appeal Board (“TCAB”), but which was actually one of Non-Refoulement Claims Petition Office (“NRCPO”)) made on 9 June 2020 (“the NRCPO Decision”)[1] and which was exhibited to the Affirmation. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application. He made some submissions in relation in relation to his application, which I set out and deal with below.

3.  I have amended the Form 86 of my own motion to reflect the nature of the NRCPO Decision, and the identities of the proper Putative Respondent and Putative Interested Party.

Background

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

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by one Ghafar, Ghafar’s relatives, and members of the PML(Q);

(2)  The claim was initially assessed and rejected on the basis of Torture Risk[2] by the Director of Immigration (“Director”) in a decision dated 24 May 2013 (“Director’s Decision”);

(3)  As no appeal was filed against the Director’s Decision, the Torture Risk claim was hence finally determined in accordance with s. 37V(2)(a) Immigration Ordinance (Cap. 115);

(4)  On 30 April 2018 the Applicant submitted an SCF through the Duty Lawyer Service, and subsequently attended an Interview. The claim for non‑refoulement protection was assessed on the grounds of BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and was rejected by the Director in a decision dated 31 May 2018 (“Director’s Further Decision”);

(5)  The Applicant petitioned the NRCPO for relief in relation to the Director’s Further Decision, which held a hearing in relation to the Applicant’s non-refoulement claims on 6 January 2020; and

(6)  The NRCPO issued the NRCPO Decision on 9 June 2020, in which it decided that the Applicant’s claim failed on the three relevant bases, dismissed the petition, and confirmed the Director’s Further Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  The Form 86 does not identify any grounds of judicial review, or advance 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 NRCPO Decision.

9.  In the Affirmation the Applicant says that he does not agree with the NRCPO Decision and claims that he “did not get free, fair and legaly(sic) decision”. This is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO Decision. Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist the Applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

10.  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.

11.  The NRCPO began by setting out the Applicant’s background, immigration, and procedural history, a summary of his claim, and the materials before it (Paragraphs 1 to 9). It then detailed the facts alleged by the Applicant, including his supplementary testimony at the hearing (Paragraphs 10 to 50), and the principles relevant to each of the three grounds at hand as well as to assessment of the Applicant’s claim (including as to standard and burden of proof, and internal relocation) (Paragraphs 51 to 71), and relevant COI that it had considered (Paragraphs 72 to 89).

12.  The decision-maker then turned to assess the Applicant’s evidence and make her findings of fact. She gave salient reasons as to why she found the Petitioner’s account to be unreliable, and did not accept that he had been threatened with being harmed or killed by Ghafar, or even that he had been assaulted by Ghafar’s family and his men. She also found that it was implausible that he remained a target of the Ghafar family. Indeed, it was only accepted that he was a national of Pakistan (Paragraphs 90 to 103).

13.  Given such findings, the NRCPO unsurprisingly did not accept that there was any evidence that he would be exposed to BOR 2 Risk, BOR 3 Risk, or Persecution Risk if refouled. It also found, from the COI, that state protection was available. The Applicant’s claims for non-refoulement protection on the three relevant grounds therefore failed, the petition was dismissed, and the Director’s Further Decision was confirmed (Paragraphs 104 to 115).

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the NRCPO Decision and justify the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, the risk of harm, and state protection, which are all matters primarily within the province of the decision-making body. Nor do I see any reasonably arguable public law basis to vitiate the decision-maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  At the hearing before me, the Applicant initially said he had nothing to say in relation to his leave application. However, he then claimed that since 2017 he had no contact with his family back home, that his parents had passed away and that he did not know the whereabouts of his siblings. He said that he had only been in touch with an unnamed friend of his father who had said that his “problem” had not been resolved, that the friend was “doing his best to to get it solved” and that such would take 6 months to a year. He therefore requested to be allowed to stay for a year and said after his “problem” was solved he would go back himself.

16.  I do not see that such bare and unsubstantiated allegations are relevant to the issues before me or assist the application for leave, given the aforesaid findings in and analysis of the NRCPO Decision, and as judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (Lakhwinder Singh, supra).

17.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

18.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed.

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