SHAH MEHMOOD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 675/2020

[2025] HKCFI 4039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 675 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 from the Applicant in open court;

1.   The Form 86 be amended on the Court’s own motion, substituting the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative 2^nd Respondent in place of “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition”, and naming the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated and filed on 16 April 2020 (“Form 86”), and an affirmation also dated and filed on 16 April 2020 (“Affirmation”), the Applicant sought leave to commence a judicial review of:

a.  A decision of the Director of Immigration (“Director”) dated 27 April 2018 (“Director’s Decision”); and

b.  A decision dated 13 March 2020 that was exhibited to the Affirmation, which describes itself as being one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“TCAB Decision”).[1]

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  

3.  The Form 86 was accompanied by a supporting affirmation also dated and filed on 15 April 2020 (“Affirmation”), which exhibited the NRCPO Decision and a single page document containing several Grounds on which Relief is Sought (“Grounds”).

4.  The Applicant appeared at the oral hearing of his application and asked me to adjourn the hearing for 4 to 5 months.  I refused the application for reasons I gave orally, and which I will (for the sake of completeness) briefly outline below in relation to my consideration the merits of the leave application. 

5.  The Form 86 names the Director as the 1^st putative respondent, the adjudicator of the NRCPO as the 2^nd putative respondent, and does not name an interested party.  I have amended the Form 86 as set out above since the TCAB Decision states that it is a decision of the TCAB/NRCPO, and as in any event the Director should be an interested party in relation to the application for leave to apply for judicial review of the TCAB Decision. 

Background

6.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary:

a.  The Applicant lodged a torture claim on 8 August 2011[2].  That was rejected on 9 December 2011 and a petition against that was dismissed on 31 May 2012;

b.  In May 2014 he submitted the Written Submissions to the Director and, under the USM, made further claims for non-refoulement relief by way of SCF dated 21 March 2018, and at an Interview.  The basis of his claims was that if he were sent back to Pakistan, he would be harmed or killed by his creditor, Major Tahir;

c.  Those claims were assessed on the grounds of BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and were rejected by the Director in the Director’s Decision on 27 April 2018;

d.  The Applicant sought relief from the TCAB/NRCPO by way of a notice of appeal/petition dated 10 May 2018;

e.  On 3 December 2018 a member/adjudicator of the TCAB/NRCPO held the First Hearing in relation to the Applicant’s non-refoulement claim, at which the Applicant attended and answered questions with the assistance of an interpreter.  However, that member/adjudicator could not finalise the decision;

f.  The matter was reallocated to a different member/adjudicator who issued a new Notice of Hearing on 20 November 2019 to the Applicant, and held the Second Hearing on 20 January 2020.  The Second Hearing was attended by the Applicant, who was assisted by an interpreter; and

g.  The TCAB/NRCPO handed down the TCAB Decision on 2 April 2020 which found that the Applicant’s claims for non-refoulement relief were not made out on the three 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 Applicant relies on the Grounds in Exhibit “SM-2” to his Affirmation, all of which have been adapted almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

a.  At Paragraph 1 of the exhibit, “The Applicant believes that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non‑refoulement claim.  He believes that these decisions were not reasonable and fair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported back to his country.” (Ground 1)

b.  Also at Paragraph 1 of the exhibit, “In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.” (Ground 2)

c.  Various grounds at Paragraphs 2 to 4 of the exhibit which all relate to the Director’s Decision (Grounds 3).

“2. From the Director's Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant's case. This has indeed led to an unfair outcome of rejecting the Applicant's non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant's aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied(sic) reports on the matter which stated testament to the applicant's assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

11.  However, once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  Hence Grounds 3 and all of the allegations therein must be dismissed, and when considering Ground 1 I shall ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed. 

12.  The remaining portion of Ground 1 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 TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an 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). 

13.  Nevertheless, given the seriousness of the issues at hand, and notwithstanding the similarly vague and unparticularised nature of Ground 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and bearing in mind also both Grounds. 

14.  The TCAB Decision explained the principles and approach in assessing each of the three types of risk, and internal relocation (Paragraphs 1 to 21).  This was followed by the Applicant’s immigration and procedural background, an outline of the events leading up to the determination of the Applicant’s claim by the decision-maker (including the First Hearing and the Second Hearing), and the determinative issues in the case (Paragraphs 22 to 38). 

15.  The decision-maker then set out the Applicant’s case as set out in the SCF, the Interview, and at the First Hearing (Paragraphs 39 to 69), before doing the same with the Applicant’s evidence and exchanges with the TCAB/NRCPO at the Second Hearing (Paragraphs 70 to 96). 

16.  The TCAB/NRCPO then concluded, with regard to relevant principles and reasons that it gave, that the Applicant was not a witness of truth and had fabricated his claims in relation to opening a shop and the loan that he had allegedly taken from Major Tahir.  It rejected the core facts advanced by the Applicant in support of his claims, finding in particular that he had remained a farmer for the entire period for the entire period up until his departure for Hong Kong, that he had never borrowed money or had a debt from Major Tahir or anyone else, did not run a cloth/fabric or sewing shop, had not been threatened or harassed (nor had his parents and brother been so threatened or harassed or had to move to escape the creditor), was never actively involved in politics, and was not of adverse interest to Major Tahir or any other person in Pakistan.  The TCAB/NRCPO accordingly considered that there was no real risk that the Applicant would face any of BOR 3 Risk, BOR 2 Risk, and Persecution Risk upon return to Pakistan, and confirmed the Director’s decision (Paragraphs 97 to 129). 

17.  From my examination and scrutiny I do not 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 TCAB Decision, and that is sufficient to justify the grant of leave, including as set out in Grounds 1 or 2.  In particular:

a.  As to the remnants of Ground 1, I see no Wednesbury unreasonableness or irrationality in the TCAB Decision, including in its assessment of and conclusions as to BOR 2 Risk;

b.  As to Ground 2, I see no reasonable argument that the TCAB/NRCPO’s approach gives rise to any reasonably arguable public law grounds (including of any divergence from the requisite high standard of fairness) that would justify a grant of leave.  Firstly, and as a matter of context, the Applicant was assisted by the Duty Lawyer Service before the Director, and hence had already had ample opportunity at that stage to arrange relevant evidence in support of his claim.  Secondly, and given that Second Hearing took place some 1 year and 8 months after the Director’s Decision, and over 13 months after the First Hearing, the Applicant had even more time and opportunity to arrange (and to produce to the TCAB/NRCPO) all evidence relevant to his non-refoulement appeal/petition, and to prepare for his appeal.  Thirdly, there is no evidence that the Applicant complained about such issues (or indeed of any difficulty caused by such), or sought more time and/or an adjournment to arrange more evidence or to prepare for his appeal, whether at the Second Hearing or at any stage prior to the TCAB Decision.  Finally, and in any event, the Applicant has not provided any specifics of the evidence or matters relevant to his appeal that he claims he would have arranged, nor has he explained how such (or the apparent failure to allow him to “arrange” such) would have affected, impeached, or vitiated the conclusions reached in the TCAB Decision, in particular those relating to the Applicant’s credibility; and

c.  I see no public law error in relation to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-maker.

18.  As I have said, at the oral hearing the Applicant sought an adjournment of 4 to 5 months.  He claimed that this would allow him to be treated for unspecified eye problems and some associated conditions which he said he had started to experience a month before the hearing.  He produced a slip issued by the Tuen Mun Eye Centre which merely indicated that an appointment had been scheduled for him a few days before the hearing.  I refused the application as he had not submitted medical evidence to substantiate his claims as to his medical condition or to establish that he was entitled to sick leave or was medically unfit to attend court (let alone for the next 4 to 5 months), and as I was not given any sufficient or acceptable explanation for the failure to produce such evidence.  I also do not see how his unsupported allegations as to his unspecified medical condition are in any way relevant to or assist his leave application.  The same applies in relation to his vague request at the oral hearing that he be “granted extra time”.  

19.  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

20.  In the circumstances, I make the orders above and dismiss the application for leave for judicial review. 

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