JALIL BABAR 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 Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Pakistan.  By a Form 86 filed on 22 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 22 July 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”) dated 4 August 2017 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application. One was scheduled for 4 September 2025, and he lodged some further submissions and documents 2 days before it.  He then attended the hearing and made some further oral submissions on the issue of delay.  I have set out and dealt with such matters below.

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

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 people from the PPP;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 6 July 2016 (“Director’s Decision”), and was also assessed and rejected on the grounds of BOR 2 Risk[5] by the Director in a decision dated  17 March 2017 (“Director’s Further Decision”);

(3)   The TCAB/NRCPO notified the Applicant in March 2017 of the date of hearing of his appeal/petition, which took place on 12 June 2017 and at which the Applicant gave evidence via an Urdu interpreter; and

(4)   The decision-maker issued the TCAB Decision on 4 August 2017, in which it was held that the Applicant’s appeal/petition failed on all applicable grounds.

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).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the TCAB Decision, and more than 32 months out of time.  I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

10.  Dealing, firstly, with the merits of his application, the grounds mentioned in the Form 86, which have been copied almost word for word from other cases, are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)    “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

(2)   “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”; (Ground 2)

(3)   “…the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness”; (Ground 3) and

(4)   “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4)

11.  The Form 86 and the Affirmation also contain the following allegations which, again, have been copied almost word for word from other cases:

(1)   The Applicant believes he was not given a fair opportunity to “keep forward” his submissions in an oral hearing nor was he invited to submit written submissions.  The Affirmation, but not the Form 86, also said “Even if the Adjudicator decides not to have oral hearing, he should at least invite me to submit written submissions and evidence”.  Both documents also complain that “When the Applicant filled in the Appeal Form, [the Applicant] was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

(2)   The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay.  They have also relied on some cases which are fairly outdated considering the dramatic changes,” and “The lack of credible source of information has resulted in them making groundless speculations that it is safe for [the Applicant] to return back to [the Applicant’s] country of origin”. (Complaint 2)

12.  Grounds 1 to 4 are merely 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.  They are hence entirely inadequate, as 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; Akhondo Shakhil [2021] HKCA 1616 at §15). Complaint 2 also does not contain salient particulars.

13.  The Applicant’s written submissions lodged shortly before the oral hearing also contain an assortment of complaints, in particular:

(1)   That the TCAB Decision “determination of Appeal/petition on hearing Testimony was wedding(sic) unreasonable or irratio(sic)”;

(2)   That the TCAB had “failed to give any or had given insufficient reason for dismissing the appeal of(sic) hearing”;

(3)   That there was a “cherry-picking and biased and formula approach in coming to such a conclusion is highly unfair and prejudice”;

(4)   That the TCAB/NRCPO’s “assessment of my credibility was therefor procedurally unfair and/or irrational”;

(5)   That the TCAB “erred in law and/or acted in a procedure(sic) unfair manner by wholesale dismissing my evidence based on vague on(sic) assertions that these amounted to “hearsay or “speculation””[8];

(6)   “Forthwith Reason stated above the decision did not meet the necessary high standards of fairness and/or was other(sic) unlawful.”

(7)   That the TCAB “must take a holistic approach to evidence-considering all relevant considerations/evidence as an aggregate whole rather than in isolation”;

(8)   That a TCAB “would be wrong to exclude matters totally from consideration in the balancing process simply because the decision makers believe”, “On what may be sometimes fragile evidence, that probably did not occur”;

(9)   “However the [TCAB] does not appear to have considered any humanitarian grounds or getting information in making his finding that my account was “inherently implausible”.”

(10)   That the TCAB’s “assessment of my credibility was therefore procedurally unfair and/or irrational”;

(11)   That the adjudicator “excludes significant aspects of no evidence which and considered amounted to hearsay or speculation the adjudicator stated that:”

i.   ““While hearsay is not inadmissible in itself” the weight which can be attached to such evidence is greatly reduced and is greatly reduced by virtue of the evidence.”

ii.   “Speculation on its own can rarely be any aspect of the Applicant case.”

iii.   “In the circumstances, I am unable to gain any weight to the Applicant's evidence which amounts to hearsay or speculation."

(12)   For the reasons above the TCAB Decision “did not meet the necessary high standards of fairness and/or was other(sic) unlawful”.

(collectively, the “Further Complaints”)

14.  The Further Complaints have apparently also been lifted almost word for word from the submissions in Fayyaz v TCAB/NRCPO [2025] HKCFI 6326, with little or no thought given to the application of such to the present case. For example, the TCAB Decision does not contain the alleged contents which are said to have been “stated” by the adjudicator as set out in paragraphs 13(11)i to iii above, or for that matter the phrases or any reference to “hearsay”, “speculation”, or “inherently implausible” (cf. paragraphs 13(5) and (9) above).  Such unparticularised allegations which merely contain selected keywords and phrases are also entirely inadequate and are not effective grounds to support a judicial review.

15.  Nevertheless, given the seriousness of the issues at hand and the allegations in Complaints 1 and 2, as well as the Further Complaints, 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.

16.  The decision-maker set out the Applicant’s background, immigration and procedural history, the documents at and conduct of the hearing, the Applicant’s claims, the conclusions reached by the Director, and the relevant law and principles in relation to evaluating risk and credibility (Paragraphs 1 to 27).

17.  The decision-maker then set out the process as to assessment, and its assessment, of the Applicant’s credibility and evidence. The TCAB/NRCPO concluded, with reference to detailed and salient reasons, that nothing the Applicant said to it or had presented in evidence could be given any credence whatsoever, the Applicant was not a witness of truth, and that while it was not disputed that he was a national of Pakistan, he had not beyond that established any of the facts he had asserted.  There was hence a failure to establish any real risk of harm that would amount to Persecution Risk, BOR 2 Risk, BOR 3 Risk, and Torture Risk, the appeal/petition failed, and the Director’s decisions were confirmed (Paragraphs 28 to 49).

18.  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 that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and risk of harm which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

19.  As to Complaint 1 in particular, that (whether on its own or in conjunction with any of Grounds 1 to 4) also does not raise any reasonably arguable error of public law.  An oral hearing took place and it was for the Applicant to establish his claims before the decision-maker.  If he had further submissions to make or evidence to submit (including in response to the Director’s submissions) to the decision-maker, he could have done so at the oral hearing.  It is baseless to suggest that the decision-maker had to invite him to do so before he would do the same, or that he was somehow deprived of some opportunity to do so.  A fortiori when he had ample time from the Director’s Decision, and from the notification of the date of the hearing, to prepare for the hearing of his appeal, there was no indication that the Applicant complained at the hearing about these matters, and when he has not provided any specifics of how this apparently prejudiced or tainted the conduct of the hearing or the TCAB Decision, let alone in a manner sufficient to vitiate the conclusions (particularly those relating to the Applicant’s evidence and lack of credibility) reached by the TCAB/NRCPO.

20.  I also do not see any reasonably arguable ground for judicial review arising in relation to Complaint 2 (whether on its own or in conjunction with any of Grounds 1 to 4).  The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision.  There was also no complaint about such at the oral hearing, and in any event I do not see how any such public law complaint arises in the present case.

21.  I also do not see or accept that any or all of the vague and unparticularised Further Complaints, whether considered on their own or in conjunction with any of Grounds 1 to 4, constitute reasonably arguable grounds of judicial review in relation to the TCAB Decision.

22.  The Applicant in his written submissions had also asked me to consider his wife’s condition (as to which he had attached several documents regarding his marriage and his wife’s apparent health condition), his “current situation in Pakistan”, and asked me to give him “relief as a human being I can stay with my wife and look after her”.  At the hearing he repeated that he had been married, and that he still had “problems back home in Pakistan”.

23.  I do not see that such matters are relevant to or assist the application in any way, given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings.  Even if he is married to a Hong Kong permanent resident, that is not a valid ground or relevant consideration in relation to his non-refoulement claim (Oguzie Ikechukwu Charles [2022] HKCA 135).  I also similarly do not see how her health is relevant to such, or to the present application.

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

25.  Secondly, there is undue delay in this case as the leave application was filed over 32 months out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents (or even in the written submissions filed shortly before the hearing) for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

26.  Before me, the Applicant claimed that he was only told of the TCAB Decision by the Department of Immigration when he went to sign in with them in July 2020.  He claimed to have not received the TCAB Decision before that even though he admitted that he had, throughout 2017, lived at the Reclamation Street address to which it had been sent by post.  As there was no indication that the letter had been returned undelivered, I asked him whether there was anything to support his claim that he had not received it.  He made the bare allegation that as there was no letterbox “They would just come and drop the letters there” and he did not see any letter with his name on it.

27.  I do not accept that I have been given an acceptable or credibly valid explanation for the delay as there is no indication that the TCAB Decision was returned undelivered, I do not see that there is sufficiently cogent and credible evidence to rebut the presumption in s. 37ZV(3) Immigration Ordinance (CAP. 115), and as I do not accept his bare assertion that it was only in July 2020 that he learnt about the TCAB Decision.

28.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

29.  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