AZEEM 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 the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 27 June 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 7 April 2022 (“Board’s Decision”).  The Board affirmed the Decision of the Director of Immigration (“Director”) dated 31 January 2018.

2.  The Applicant did not request an oral hearing.  I determined his Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 omitted to name the Director as putative respondent.  I therefore amend the Form 86 on my own motion to name the Director as the putative interested party.

Background

4.  The Applicant is a citizen of Pakistan.  His background and the basis of his application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to fear a police officer because he was a witness in a criminal case against the officer for taking a bribe from the Applicant’s uncle.   

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  He has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.  

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board found that the Applicant’s evidence on the dispute giving rise to the bribe was inconsistent. His original claim was that he and his brother-in-law/cousin were involved in a political dispute.  However, during the hearing before the Board, he repeatedly said that the fight was not about politics, and he did not know what the dispute was about.  He also claimed he was not involved in the dispute: §§32-35, 42.

(2)   The Board also considered that the Applicant’s uncle (who made the complaint against the police officer) and cousin (the only victim of the assault that led to the bribe) have both been able to live in Pakistan in the same area as the police officer without any problem.  The Applicant offered no credible explanation for why he was allegedly targeted by the police officer and not his uncle and cousin: §§39, 43.

(3)  The Board held that the Applicant had not established that he would face a real risk of ill-treatment at the hands of the police officer or anyone else if he were returned to Pakistan: §51.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application 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