WAQAS UR REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 138/2020

[2025] HKCFI 2076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 138 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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) dated 9 January 2020 (the “TCAB Decision”) affirming the decision by the Director of Immigration (the “DOI”) dated 27 September 2019 refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing of this application and he attended the same.

Background

3.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he will face risk of harm and even death at the hands of a person of opposing political affiliation.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  In his Form 86, the Applicant did attach a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

6.  At the hearing the Applicant informed me that he is applying for a dependent visa as he had married to a Hong Kong citizen.  However, this has no relevance to the issues at hand.

7.  Looking at the TCAB Decision, all the available evidence was before the TCAB, including the Applicant’s testimony at the oral hearing before the TCAB [10-34] and relevant COI [49-53].  The TCAB carefully considered the same [40-88], bearing in mind the correct burden and standard of proof [44-48], before coming to the conclusion that the Applicant’s allegations were not sufficiently made out [89-106].

8.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM and concluded that none was made out [108-121].  The TCAB further concluded that internal relocation was in any event available to the Applicant [123-125].

9.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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