MUHAMMAD ASLAM KHAN alias MOHAMMAD ASLAM KHAN alias MOHAMMAD ASLEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1649/2020

[2025] HKCFI 5352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1649 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent, and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 December 2016 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 5 March 2015 (“DOI 2015 Decision”).  The Form 86 incorrectly referred to the date of the DOI’s decision as 5 March 2016 (and I regard that as a typo).  The TCAB Decision was not concerned with claims under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”).

2.  The Applicant’s claim under BOR2 was rejected by the DOI on 3 February 2017.  This led to a subsequent decision from the TCAB dated 2 March 2020 (the “2^nd TCAB Decision”) refusing the Applicant’s late filing of the Notice of Appeal / Petition.  By way of an Addendum to the decision, the TCAB also considered that the Applicant’s claim under BOR2 had no merits even if he was to be allowed an extension of time.

3.  I note that the Form 86 specifically refers to the TCAB Decision by date.  It also refers to the DOI 2015 Decision by date (subject to the typo as aforesaid).  Further, the Applicant’s supporting affirmation contained the DOI 2015 Decision as the only exhibit.  I consider that these are clear indications that the Applicant only wished to challenge the TCAB Decision (and with it, the DOI 2015 Decision) in this application, and the 2^nd TCAB Decision does not form part it.

4.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

5.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not.

Background

6.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he would be harmed if he is to return to his home country.  In brief terms, he is a Sunni Muslim and he would be harmed or killed by Shia Muslims with which the Applicant had a fight in the past as he shot and wounded one Waseem.  He also fears that he would be arrested by the Pakistani police for attempting to murder Waseem.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

7.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

8.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

10.  In the Form 86, the Applicant in gist complained that the TCAB Decision was “not reasonable and fair”, failed to give proper weight to state acquiescence, improperly placed too much weight on Country of Origin information, ignored the Applicant’s personal background and experience, failed to appreciate corruption and administration incompetence in his home country, and adopted unfair procedure by not accepting the Applicant’s explanations.

11.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-3] and found that on the basis of the same, applying also the correct legal principles in respect of the three applicable grounds (i.e. leaving aside BOR2 risk) [5-6, 25-27, 30-32] and properly taking into account Country of Origin information [21-23], the Applicant’s allegations were insufficient to make out any of the applicable grounds [7-17, 28-29, 33-34].  In particular, the TCAB found the Applicant’s evidence to be “unreliable” and “dishonest” [36-39].  These were conclusions that the TCAB was fully entitled to come to.

12.  The TCAB also concluded internal relocation is possible as against the Shia Muslims [19, 23, 29, 34].  State protection is also available [28, 33].

13.  As to the grounds raised by the Applicant in the Form 86, I see them as bare assertions without any basis.  There was no procedural unfairness identified at all, and the Applicant was afforded an oral hearing leading to the TCAB Decision.  Other complaints relate to the weight placed by the TCAB on various factors and I am unable to discern any error (in the public law sense) that justifies interference.  I find all of these grounds and complaints wholly unsubstantiated.

14.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.  I further note that the application against the TCAB Decision was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made.  Since I have held that the application is without merit, I also refuse to grant an extension of time (there was also no explanation for the delay). 

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