|
HCAL 3725/2019
[2025] HKCFI 6328
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3725 of 2019
|
BETWEEN
|
| |
Zubair Sheikh Talha |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/ |
Putative |
| |
Non-refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicants’ application by Form 86 filed on 16 December 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 18 November 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non‑refoulement protection (the “Notice”).
The Applicant’s claim
2. The Applicant is a Pakistani national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. The Applicant claims to be a very devoted Sunni Muslim born and brought up in Dina City in Punjab, Pakistan. In gist, he claims he will be harmed or killed by Shia Muslims for refusing to convert to the Shia religion, if returned to Pakistan.
The Board’s finding
3. The Board found multiple and significant inconsistencies between the Applicant’s account of events leading to his fleeing Pakistan as described by him in his non-refoulement claim form and in his oral testimony before the Board. When each of the inconsistencies was put to him, he invariably said whichever was written in the non-refoulement claim form is correct and put the blame for the inconsistencies on lapse of time. The Board considered the nature and extent of the inconsistencies strongly indicative of the fact that his claims had been fabricated. It also found on the basis of authoritative and credible country of origin information (“COI”) that the Shia Muslim were in the minority in Pakistan. Its population ranged from 5 to 20 percent of the population in Pakistan only. The Board was unable to accept his claim that Shia persons within his community would attempt to force him to become a Shia, threaten, beat and pursue him for his refusal to convert to Shia Muslim. The Board found the Applicant is an untruthful witness, that the totality of his claims had been fabricated and that he came to Hong Kong and sought to remain for reasons entirely unrelated to his claim for protection. It was not satisfied that there are substantial or strong grounds or a real chance, or a real risk that the Applicant will suffer harm amounting to torture, cruel, inhuman treatment, degrading and punishment, a risk to his life, or persecution. Applying the law applicable to non-refoulement protection to the finding, the Board was not satisfied that the Applicant had proved his entitlement to non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, it dismissed his appeal against the Director’s Notice of Decision.
The legal principles applicable to judicial review
4. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].
Grounds for judicial review
5. The Applicant had not advanced any grounds of judicial review in his Form 86 or supporting affirmation. At the hearing, after the above legal principles were explained to him, the Applicant confirmed that he had no complaint about error of law, procedural unfairness and irrationality in the Decision. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
6. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI.
7. It found the Applicant was not a witness of truth and that his claim had been fabricated. As the Applicant bears the burden of proving his entitlement to protection, that finding must necessarily mean he has failed to discharge the burden of proving his entitlement to non-refoulement protection under any of the applicable grounds under the USM. This is a finding of fact solely within the realm of the Board which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. Insofar as the Board’s application of the law to the facts it found, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
8. For the above reasons, the Applicant’s leave application is refused.
Dated the 19th day of December 2025
| |
(Seline Sze)
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 19/12/2025
Zubair Sheikh Talha
Applicant’s ref. no: Nil
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13847/18/10/189/P2743
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3861/18 (Formerly RBCZ 13371/16) (T9I65)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|