MUSTAQEEM 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 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 29 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decisions by the Torture Claims Appeal Board (the “TCAB”) dated 20 October 2016 and 15 February 2018 (the “1^st TCAB Decision” and the “2^nd TCAB Decision” respectively, and together the “TCAB Decisions”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 31 December 2014 and 2 March 2017.

2.  I amend the Form 86 on my own motion to name 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 his life would be in danger if he is to go back. The Applicant contends that an influential person (“KA”) in his area, analogous to a member of a triad society, asked the Applicant to vote for him in a local election in 2008 but the Applicant refused. A week later the local police came looking for the Applicant because KA laid against him false charges of stealing KA’s car. The Applicant was not at home and the police left. A few days later KA sent some of his followers to look for the Applicant but a friend tipped him off so he left the house beforehand. He went to stay with a friend in another village which was about 2 hours’ walk away. During that time the Applicant still heard from his family that KA came looking for him with bamboo sticks and axes. The police was also looking for him in relation to the false charges.

5.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decisions, which can be viewed through 2 hyperlinks[1] [2]. I shall therefore not repeat them.

Discussion

6.  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.

7.  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.

8.  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.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. Rather, the Applicant prepared a 6‑page note of submissions as an exhibit to his affirmation in support. I have taken into account its contents in full.

10.  As can be seen from the TCAB Decisions, the TCAB took into account all the evidence available [TCAB 1^st Decision 23-32, TCAB 2^nd Decision 13-17] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [TCAB 1^st Decision 3-21, TCAB 2^nd Decision 9-11], the Applicant’s allegations were insufficient to make out any of the applicable grounds [TCAB 1^st Decision 44-53, TCAB 2^nd Decision 16, 22]. In particular, the TCAB found that the Applicant’s story was incredible and inherently extremely unlikely [TCAB 1^st Decision 33-43]. The TCAB also properly considered whether an oral hearing was required in relation to the TCAB 2^nd Decision but decided (plainly correctly in my view) it was appropriate to decide the matter by way of paper review [TCAB 2^nd Decision 12, 18-21].

11.  In the Applicant’s note of submissions, he set out what he perceives to be the political deficiencies and the prevalence of corruption in Pakistan. He also complains that the country of origin research carried out by the TCAB over the internet was inaccurate and did not reflect the true situation in Pakistan. However, these are not matters that I am required to deal with and they do not render the TCAB Decisions liable to be judicially reviewed. The TCAB’s finding of fact that the Applicant’s story was incredible is fatal to the application.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decisions, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decisions 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 each of the TCAB Decisions was made. Since I have held that the application is without merit and there is no proper explanation for the delay, I also refuse to grant an extension of time.

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