RAJA ARSHAD MAHMOOD alias AKHTAR NOVEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 657/2020

[2025] HKCFI 3880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 657 of 2020

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 from the Applicant in open court;

1.   The Form 86 be amended on the Court’s own motion, substituting (in relation to the field “Name, description, and address of proposed respondent”) “/Non-Refoulement Claims Petition Office” in place of the “Director of Immigration”, naming only the Director of Immigration as the Putative Interested Party, and substituting “of the Non-Refoulement Claims Petition Office dated” in place of “against the Director of Immigration dated”; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated and filed on 15 April 2020 (“Form 86”), and an affirmation also dated and filed on 15 April 2020 (“Affirmation”), the Applicant sought leave to commence a judicial review regarding a decision dated 24 January 2020, which the Form 86 says is one of the Torture Claims Appeal Board (“TCAB”). However, the decision of 24 January 2020 as exhibited to the Affirmation is one of the (“NRCPO”) (“the NRCPO Decision”)[1].

2.  As the Applicant also confirmed at the oral hearing that he sought leave to apply for judicial review of the NRCPO Decision, I have hence amended the Form 86 of my own motion to reflect the NRCPO’s status as the decision-maker, and the identity of the Director as a putative respondent. I will also use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief are set out in the NRCPO Decision, and also in a prior decision of the TCAB made on 25 March 2014 (“TCAB Decision”)[2]. I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be arrested by the police due to a shooting incident relating to Akram, a supporter of the PMLN, or that if the police were to release him then he would be harmed by elements of the PMLN;

b.  The Applicant filed a non-refoulement claim in 2011 in relation to Torture Risk[3]. He withdrew that claim on 29 August 2012 at which time he was represented by the Duty Lawyer Service (“DLS”). He sought to re-open that claim, but the request was refused both by the Director of Immigration (“Director”) in a decision dated 31 July 2013, and on appeal by the TCAB in the TCAB Decision. It is not apparent that the Applicant sought any further relief in relation to the TCAB Decision;

c.  On 16 June 2018 he completed a Supplementary Claim Form (“SCF”) and, with the help of the DLS, advanced a claim for non-refoulement relief on the basis of BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6]. That claim was assessed on those grounds and was rejected by the Director in a decision dated 26 July 2018 (“Director’s Decision”);

d.  The Applicant then petitioned/appealed to the NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 19 November 2019; and

e.  The NRCPO then handed down the NRCPO Decision which rejected the Applicant’s petition/appeal, and confirmed the Director’s Decision.

Legal Principles

4.  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). 

5.  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). 

6.  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). 

Discussion

7.  The Form 86 and the Affirmation do not identify any grounds of judicial review. There are hence no allegations of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

8.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have in relation to the question of merits of the substantive application 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.

9.  The NRCPO Decision outlined the Petitioner’s background, immigration and procedural history, the conduct of the hearing, the relevant grounds of risk, and the approach applied by the NRCPO (Paragraphs 1 to 11).

10.  The decision-maker then set out the details of the Petitioner’s claim, including as to the Petitioner’s medical condition (Paragraphs 12 to 23). The decision-maker then analysed the case, concluding inter alia that (Paragraphs 24 to 38):

a.  Aspects of the Applicant’s immigration and procedural history seriously compromised and adversely affected his credibility and the NRCPO did not accept his claim that he came to Hong Kong intending to seek non-refoulement protection;

b.  In any case, and as regards risk of harm, the Applicant’s fears about being wrongly implicated in the shooting were based on speculation and were largely baseless. There was little likelihood he would be arrested and prosecuted for such, and in any event there was no risk that he might receive an unfair trial as Akram had no power to influence the police and legal process. There was also no threat to the Applicant from Akram or the PMLN or any supporters as claimed or at all, nor did Akram have the power to hunt down the Applicant or (as already mentioned) influence the police and legal process; and

c.  Even if there were any risk to the Petitioner, then given his age, education, and opportunities available to him it was open to, and reasonable and practical for, him to relocate internally away from his home village, for example to Karachi. There were also treatment centres in Pakistan (including in Karachi) where he could obtain, for free, the drugs necessary to treat his medical condition.

11.  The NRCPO accordingly found that there was no BOR 3 Risk, BOR 2 Risk, or Persecution Risk, that the Applicant had no grounds for non-refoulement protection based on such, dismissed the petition and affirmed the Director’s Decision (Paragraphs 39 to 41).

12.  From my examination and scrutiny, I do not 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 vitiates the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding credibility, the risk of harm, and consequently Persecution Risk, BOR 3 Risk, and BOR 2 Risk, as well as internal relocation and all factual issues relating to the availability of medical resources if the Applicant were refouled. They are all also matters primarily within the province of the decision-making body.

13.  The Affirmation contains an allegation, and exhibits a document (which is dated prior to the hearing before the NRCPO) relating to the Applicant’s medical condition. He claimed at the oral hearing before me that if he were sent back it would be “difficult to obtain” relevant medicine where he lived (in or near Bhimber) so his “life will be over”, and askedthat he be givenfor more time to stay in Hong Kong. However, I do not see that such are relevant to the issues before me or assist his application for leave. Not only was the NRCPO aware of his condition, but as I have mentioned it also found that internal relocation to Karachi was reasonable and available to the Applicant, and that in Karachi he would have access to the necessary medication for free (Paragraphs 22, 37, and 38).  Indeed, the Applicant accepted before me that he was aware that his condition had been mentioned and dealt with in the TCAB Decision.  I hence do not accept that the claims and the document are relevant to or assist his case, or that the document is admissible.

14.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

15.  In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out above.

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