ARMGHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following:

1.  The Form 86 is amended on the Court’s own motion, naming only 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.  The Applicant is a national of Pakistan.  By a Form 86 filed on 26 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 26 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 9 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application on 15 August 2025.  He made some oral submissions which I outline and deal with below.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

Background

4.  This is set out in the TCAB 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 supporters of the PML(N);

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 9 August 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 13 September 2019; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 9 June 2020, in which it rejected the Applicant’s appeal/petition as being not substantiated on the applicable grounds, and confirmed the Director’s 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.  As the Form 86 does not identify any grounds of judicial review, there is no 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 TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand, 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.

10.  The TCAB/NRCPO summarised the background, issues, immigration and procedural history, and the position before the decision-maker up to and at the hearing (Paragraphs 1 to 9) before it moved on to the Applicant’s claims as made in the NCF, at the Interview, and in the NOA (Paragraphs 10 to 12).  This was followed by relevant principles in relation to each of the four grounds of risk relied on (Paragraphs 13 to 24).

11.  The decision-maker then set out his findings and assessment with regard to the information before him  and relevant principles, including as to Applicant’s duty under s. 37ZA Immigration Ordinance (CAP. 115) and the high standard of fairness (Paragraphs 25 to 28).  He had regard to what had happened at the hearing and the case of Re Hidayah [2018] HKCA 595.  He then (i) Declined to find that the Applicant’s claims that he feared harm by reason of his claimed political opinion were credible; and (ii) Therefore did not accept that the Applicant’s factual case was plausible.  He also declined to find, on the credible evidence, that the Applicant had established that he faced a real risk of harm from supporters of the PML(N) if refouled (Paragraphs 9, and 29 to 35).  Since there was on the evidence no real risk of the proscribed harm, none of the claims for Persecution Risk, Torture Risk BOR 3 Risk, and BOR 2 Risk were established, the non-refoulement claim was not substantiated, and the Director’s Decision was confirmed (Paragraphs 36 to 45).

12.  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 TCAB Decision and justify the grant of leave.  In particular:

(1)  The TCAB/NRCPO’s assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm are matters primarily within the province of the decision-making body and I do not consider that in the circumstances of this case there is any reasonable argument that the claim (particularly in relation to such issues) was not fairly processed.  Firstly, and here, the TCAB/NRCPO had explained to the Applicant that it had queries about the Applicant’s underlying claims and notified him that if he chose not to address such, it was unlikely the Director’s Decision would be reversed.  Hence, I consider that sufficient indication was given to the Applicant that the decision‑maker clearly had doubts about and was likely to (absent oral evidence from the Applicant) reject as implausible the Applicant’s underlying factual claims (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23-25, explaining Masud Md [2021] HKCA 1449).  It is also apparent that the Applicant appreciated and understood the ramifications of his position and approach.  Secondly, and unlike in Hidayah, supra, the decision-maker made findings as to the credibility and plausibility of the Applicant’s factual case, and that the Applicant had not (on the evidence) established the relevant risk of harm.  In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to such; and

(2)  There is hence, and also, no public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

13.  Primarily for the sake of completeness, I record that at the hearing the Applicant initially suggested that he might want to submit some documents about a “new problem”.  When I asked him when he said that new problem arose, he said that he suspected that it had been “6 to 8 months”, whereby some people had assaulted his brother in his brother’s shop in Pakistan.  He claimed that the evidence was a police report.  However, he then said that he would submit such “in [his] appeal” which was “the new one after this. The new HCAL one I will apply and appeal after this”.  He also confirmed that he would not (and was not applying to) submit such new documents before me, that he did not want me to take into account (and that I could disregard) such claims which he had made orally before me relating to such matters in reaching my decision, and that I could have regard to whatever else he had submitted, given, or provided in writing.

14.  Given the aforesaid matters, and the nature of judicial review proceedings, I do not see that the bare allegation made in the Affirmation (being that the Applicant’s “life is still in danger in my home country”) is relevant to or assists the Applicant’s application.  As for the allegations raised (and which I was then asked to disregard) at the oral hearing, I have not regard to such and in any event do not see any basis for suggesting that they are relevant to the present case.

15.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have made the orders above, including 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