SADIQ TOUSEEF 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 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 a Form 86 filed on 3 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 22 April 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 10 October 2013[1] and 8 March 2018.

2.  I amend on my own volition the Form 86 to name only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application.  When asked whether he had anything to add, he said that he had been in Hong Kong for the last 18 years. He got married, and his daughter was 5 years old studying at school. He was worried about her future.

Background

4.  The Appellant is a citizen of Pakistan.  In gist, he fears that he will be harmed or being killed because he had converted to Christianity from his former Sunni Islamic faith.  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[2].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

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. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would 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’s affirmation attached a document titled “Grounds on which relief is sought”, which sets out in detail various purported grounds. However, notwithstanding the length of the document, such purported grounds are vague and devoid of substance, and, in truth, did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

9.  Such grounds, in gist, boil down to the following 2 parts:

(1)   The first part contains general accusation that the TCAB “is in breach of procedural fairness” in various ways. They are general because the grounds did not, in truth, identify or sufficiently identified the TCAB’s errors. E.g. ground 4 alleges that “[the TCAB] failed to meet the greater care and duty owned to a self-represented claimant” without stating why that was the case;

(2)   The 2^nd part contains a repetition of the assertions the Applicant had already made before the TCAB.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [137-139].  In particular, it is clear that the TCAB undertook a careful and nuanced approach: it accepted various aspects of the Applicant’s case e.g. [92, 101]. However, the TCAB, correctly in my view, found that there were a number of matters that seriously undermine credibility of his evidence about those essential matters [111]. Importantly, there were serious discrepancies between the Applicant’s evidence and the evidence of Pastor Victor Joseph [114, 116, 132]. There were also serious doubts about the propriety of the documentary evidence the Applicant produced [117-124]. The TCAB had also, correctly, relied on country of origin information when arriving at its conclusion e.g. [128]. Further, the Applicant was no longer actively attending Christian services or prayer groups, nor did he proselytise [133]. It was significant that he had felt it safe enough to return to Lahore after his first visit to Hong Kong in April 2007, even though, on his account, he had allegedly already been publicly denounced by his father for his rejection of Islam and was allegedly the subject of a fatwa and that it was only upon purportedly learning of the FIR and arrest warrant against him when he returned to Pakistan that he decided it was unsafe to remain. All in all, the TCAB’s conclusion could not be faulted.

11.  I cannot see that the TCAB had committed any of the alleged errors stated in the Applicant’s grounds. The Applicant’s case mainly failed on the facts and his lack of credibility. In particular, the TCAB applied the correct principles (cf. grounds 2, 3, 4, 5, 6, 9, 11) and did not use outdated authorities (cf. ground 10). It paid meticulous attention to the Applicant’s evidence and made nuanced findings (cf. grounds 7, 8), and had considered all the factual matters the Applicant raised in the grounds.  

12.  I have also carefully considered the Applicant’s oral submissions. The Applicant’s family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to his own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20]. 

13.  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. 

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