ZAKAULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1661/2020

[2025] HKCFI 5428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1661 of 2020

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 only the Director of Immigration 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 14 August 2020 (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 5 September 2018 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 28 February 2018.  It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2012 (appeal also dismissed in 2013).  The TCAB Decision was therefore not concerned with torture risk.

2.  I also note that the Form 86 incorrectly refers to both the TCAB Decision and the decision of the DOI as the decisions under challenge.  The present application should only be concerned with the correctness (in the public law sense) of the TCAB Decision.

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

4.   The Applicant requested for a hearing of this application and he attended the same. 

Background

5.  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.  In brief terms, the Applicant and his family were active members of the Pakistan Muslim League Nawaz (“PMLN”); the Applicant was elected as the general secretary of its youth wing in 1999.  In 2005, one Wajahat, leader of a political rival and a member of the Parliament, asked the Applicant to assist in an election because of his fame in the PMLN youth wing.  The Applicant refused.  Wajahat then caused repeated threats, attacks and assaults to be made against the Applicant and his family.  The local police refused to help because of Wajahat’s influence.  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

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.  In the Form 86, the Applicant stated that his life remained to be in danger if he was to return (he also repeated the same point before me at the hearing).  Further, he essentially complained that the DOI / TCAB did not understand the real situation in Pakistan, and thereby failed to give proper weight in their deliberation.  There were also complaints that the DOI / TCAB failed to properly consider that state protection was insufficient and that the Country of Origin information in fact supported the Applicant’s case.  There were also suggestions that the TCAB failed to take into account that the Applicant has “limited options…to bring evidence before the tribunal” and there was a failure “to give sufficient chance” to the Applicant to “arrange relevant evidence”.  Many of these complaints were made against the DOI’s decision but I would take them as challenges to the TCAB Decision as well.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [3-35] 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) [37-42, 44-45, 67-69, 71] and considering Country of Origin information [36], the Applicant’s allegations were insufficient to make out any of the applicable grounds [46-66, 70, 72-73]. 

11.  Importantly, the TCAB also concluded that state protection and internal relocation were available on the basis of the available evidence [46-64, 70, 72]. These were conclusions that the TCAB was fully entitled to reach.

12.  I do not accept that the grounds put forward by the Applicant in the Form 86 are substantiated.  Ultimately it was a challenge to the TCAB’s analysis on the availability of state protection and internal relocation and I do not see how the TCAB’s Decision in this regard may be seen as incorrect (in the public law sense).  I also do not see how the Applicant may say that he has not been given a proper opportunity to gather and present his evidence – indeed the TCAB found his evidence to be credible [43].

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.  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