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

HCAL 1434/2020

[2025] HKCFI 3552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1434 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 oralsubmissions from the Applicant in open court;

1.   The Form 86 be amended on the Court’s own motion, substituting “/Non-Refoulement Claims Petition Office” in place of “(ii) Director of Immigration”, and naming only the Director of Immigration as the Putative Interested Party; and

2.   Leave to apply for Judicial Review be dismissed;

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan. By a Form 86 dated and filed on 9 July 2020 (“Form 86”), and an affirmation also dated and filed on 9 July 2020 (“Affirmation”), he sought leave to apply for judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) dated 12 May 2020[1] (“the NRCPO Decision”), which was exhibited to the Affirmation.

2.  I will use the abbreviations and definitions from the TCAB Decision[2] (defined below) and the NRCPO Decision unless otherwise specified herein.

3.  The Applicant appeared at the oral hearing of his application and made some submissions, which I address below.

4.  I have amended the Form 86 of my own motion to reflect the role of the NRCPO in making the NRCPO Decision, and to properly identify the putative interested party.

Background

5.  This is set out in the TCAB Decision and the NRCPO Decision and I will not repeat such. However, in essence:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan he would be harmed or killed by members of the PPP;

b.  The Applicant had the assistance of the Duty Lawyer Service (“DLS”) in advancing such claims to the Director via his NCF and at the Interview. The Director assessed such on the grounds of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and rejected the claim in a decision dated 18 December 2014 (“Director’s 1^st Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing on 8 April 2015 and issued a decision dated 26 November 2015 (“TCAB Decision”) which dismissed the Applicant’s appeal/petition and confirmed the Director’s 1^st Decision;

d.  The Director by a letter dated 9 January 2017 proposed to consider the Applicant’s non-refoulement claim in relation to BOR 2 Risk[6] and invited the Applicant to submit further information relevant to that aspect of his claim, by 23 January 2017. The Applicant failed to do so.  The Director then decided, by a further decision dated 2 February 2017 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non-refoulement claim;

e.  On 13 March 2017 the Applicant filed a notice of appeal/petition against the Director’s Further Decision, which included an application for late filing (“2^nd Petition”); and

f.  The NRCPO (which was constituted by the same adjudicator who had reached the TCAB Decision) issued the NRCPO Decision on 12 May 2020 which dismissed the Applicant’s application for late filing of his petition against the Director’s Further Decision.

Legal Principles

6.  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). 

7.  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). 

8.  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

9.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

10.  However, 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.  In the NRCPO Decision the decision-maker set out the procedural background to the application and the relevant provisions and approach including ss. 37ZT(2) and (3) Immigration Ordinance (CAP. 115)[7] (“Ordinance”). He refused the Petitioner’s late filing application having had due regard to (i) the reasons offered by the Applicant for the “not insubstantial” delay in question and relevant factors relating thereto; and (ii) other circumstances such as the merits of the Petitioner’s case.

12.  I do not see, that the Applicant has any reasonably arguable case that there was any other 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 justifies vitiation of the conclusions of, or the grant of leave in relation to the NRCPO Decision. In particular:

a.  As to merits, the NRCPO also clearly considered, as required by Qasim Ali [2019] HKCA 430, the merits of the Applicant’s case with regard to its previous decision (i.e. the TCAB Decision). I see no public law error in such approach or its conclusions, given (i) the conclusions that the TCAB/NRCPO had reached in TCAB Decision Paragraphs 34 to 43 and 46 as to the Claimant’s evidence, credibility, risk of harm, and BOR 3 Risk; (ii) the contents of the Applicant’s 2^nd Petition[8]; and (iii) the principles in Kulwinder Kaur [2022] HKCA 49 at §59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26; Sandhu Vinny [2023] HKCA 1261 at §§30, 32-33.

b.  I see no error in the approach taken to and consideration of the reasons for delay at NRCPO Decision Paragraphs 17 to 20, and consequently Paragraph 24. This is particularly so when it was clearly the Applicant’s duty to provide an address to the Director to which correspondence or notice could come to his attention in a timely manner, and since he did not, he had to shoulder the consequences of his failure to provide an effective updated address (see s. 37ZA of the Ordinance, and Hasmi Rizwan Imran [2018] HKCA 439 at §§14 and 15). While the delay in question was one of 21 rather than 25 days[9], I do not see that the use of the former, rather than the latter, figure vitiates the conclusion in the TCAB Decision that delay was “not insubstantial”, let alone (given also the matters in the following sub-paragraph) justify the grant of leave to apply for judicial review.

c.  There is also no possibility that remittal would or might lead to a different outcome, regardless of whether the TCAB/NRCPO applied the version of s. 37ZT in force at the time of the NRCPO Decision[10], or a fortiori if it were to apply the current version of s. 37ZT(2) and (3)[11]. This is so given the length of the delay which was clearly “not insubstantial”, the Applicant’s reasons for late filing, the principles in the paragraph above, and the other evidence before me. It would hence be futile to remit the matter, and leave should be refused as there is no realistic prospect of relief being granted[12].

13.  At the hearing before me, the Applicant said he had ongoing problems in his country and asked me to look at his case afresh. He said he was trying to “settle down that problem” and asked for more time to remain here. He claimed that he “came to know that the problem I have in Pakistan those people have made the police report against me, so I am now wanted by the authorities”.

14.  However, judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error (Lakhwinder Singh, supra) and, as far as I understand them, allegations about police reports related to the “problem” had been raised before, and rejected by, the TCAB/NRCPO in the TCAB Decision (see, in particular, Paragraphs 21 to 37 and 43 thereof). Even if they relate to subsequent matters, I reject such as bare and unsubstantiated allegations which do not assist, and are not relevant to, the leave application, given the findings in the TCAB Decision and the NRCPO Decision, and the nature of judicial review proceedings.

15.  In the circumstances, 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

16.  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