KHAN ASIF 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 4 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 14 July 2020 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 4 October 2018.

2.  The Applicant requested for a hearing of this application but he was absent at the hearing. I shall deal with this application on paper.

Background

3.  The Applicant is a national of Pakistan. He previously made a non-refoulement claim in 2011 which was rejected in 2012. He now seeks non-refoulement protection on the basis that he will be harmed or even killed by his uncles and cousins should he return home because they had a land dispute with the Applicant’s family. The Applicant claims that his uncles and cousins are connected to a political party which has influence over the village chairman and the local police, and the Applicant’s 2 brothers were shot dead by the uncles and cousins in 2009. 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

4.  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.

5.  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.

6.  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.

7.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision whether in the Form 86 or his affirmation in support. He merely stated in the affirmation that he did not agree with the TCAB’s decision.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [7-15] and found that on the basis of the same, applying also the correct legal principles in respect of all applicable grounds [17-24], the Applicant’s allegations were insufficient to make out any of the applicable grounds [25‑44]. In particular, the Applicant did not actually participate in the TCAB hearing in that he refused to answer TCAB’s questions, and the TCAB felt unable to making findings in favour of the Applicant regarding the credibility of his claims (although no adverse inference was drawn against the Applicant) [30-34].

9.  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