ASHRAF MUHAMMAD JUNAID 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:

	consideration of the documents only;        or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and only the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 16 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 22 May 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 21 November 2018 in refusing his non-refoulement protection claim. He named both the TCAB and the Immigration as the proposed respondents and interested parties.

2.  I amended the Form 86 on my own motion to named only the TCAB as the putative respondent and only the DOI as a putative interested party.

3.  The Applicant requested for a hearing and he attended the same. He informed me at the hearing that he has since married a Hong Kong citizen and applied for “visa”, and the application was still pending after 2.5 years. He had a daughter with his wife and needed to take care of both of them. However, these matters are not relevant to the issues at hand in this application.

4.  This application was made out of the three-month period provided under O.53, r.4(1), RHC. The time for taking out this application expired on 22 August 2020. The fact that the expiration date fell within the court’s summer vacation period does not extend the time limit: the court Registry remains open during summer vacation (O.63, r.7), and exclusion of the summer vacation in reckoning time is only provided in O.3, r.3 of the RHC and s.31(1) of the High Court Ordinance (Cap. 4), the former only applies to pleadings and the latter only applies to any time period not exceeding one month, hence neither applicable to the filing of a Form 86.

5.  Although there is no application for an extension of time to file the Form 86, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

6.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed by people of opposing religious affiliation if he was returned. 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

7.  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 & Anor (2007) 10 HKCFAR 676).

8.  In his affirmation filed in support of this application, apart from stating that he was “not satisfied” with it, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  Looking at the TCAB Decision, the TCAB considered the Applicant’s case and evidence, and all materials placed before it [27-66], including relevant COI [93-99] and the Applicant’s testimony at the hearing before it [67-92], and after thoroughly considering the same came to the finding that the Applicant’s allegations were not made out [100-121].

10.  With in mind the correct principles in respect of each of the four applicable grounds under the USM [2-20] and assessment approach [24-26], the TCAB went on to conclude that none of the grounds was made out [122-125].

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

Conclusion

12.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended. 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