MAHBOOB MUHAMMAD 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.  Form 86 be amended, naming only 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 21 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision dated 27 July 2018.  That was the decision of the Director of Immigration (the “DOI”), which was subsequently affirmed by the Torture Claims Appeal Board (the “TCAB”) in its decision dated 14 August 2020 (the “TCAB Decision”).  I shall treat the present application as a challenge against the TCAB Decision.  It is noteworthy that the Applicant had previously lodged a torture claim which was rejected in 2013.  The TCAB Decision was therefore not concerned with torture risk.

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

3.  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

4.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he would be harmed or even killed if he is to return.  The Applicant claimed that in 2006, the local police asked him to give false evidence against his employee and friend for committing a murder, and if the Applicant should refuse the police would fabricate false charges against him as well.  The Applicant later changed his claim and said that his employee and friend was the person who wanted to kill him for unknown reasons and he had discovered this through mutual friends.  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

5.  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.

6.  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. 

7.  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.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-14] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [17-26], the Applicant’s allegations were insufficient to make out any of the applicable grounds [41-44]. 

10.  In particular, the Applicant failed to attend the hearing before the TCAB without providing any explanation [8], and this made clarifications on inconsistencies impossible. The TCAB then proceeded to identify and consider fundamental inconsistencies with the Applicant’s account, and concluded that the Applicant’s case was incredible [27-39].  It is a conclusion that the TCAB was fully entitled to reach.  There was accordingly no factual or evidential basis to support the Applicant’s claims in the first place [40].

11.  I further observe that, as recorded in the TCAB Decision [9], by a letter dated 5 August 2020 (i.e. a few days before the TCAB Decision was given), the Applicant indicated to the TCAB that he would wish to withdraw his claims as it was safe for him to go back.  The TCAB nevertheless proceeded to consider the matter substantively.

12.  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 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 in any case 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