AHMED SHAHZAD 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:

1.  By a Form 86 filed on 16 August 2021, the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 14 July 2021 (“the Board’s Decision”), which was made pursuant to a petition/appeal from the decisions of the Director of Immigration (“DI”) dated 10 December 2018. A copy of the Board’s Decision can be seen by the following hyperlink[1]. 

2.  The Applicant is a Pakistani national.  His non-refoulement claim was based on a risk of harm from his two cousins, who were allegedly members of a political party.  After an oral hearing with intense questioning and answering, the Board came to the view that the Applicant’s claim was not credible.  This Court has considered the reasoning in this credibility finding and must say it has reservation on the finding’s rationality.    

3.  That said, the Board did proceed to analyze the Applicant’s claim on the assumption that his evidence was credible.  In my view, the Applicant’s assertions did not fall within any basic or extended meaning of State acquiescence; it was also clear that the severity of the harm/threat alleged fell far short of the requisite threshold to trigger the need for protection under the Hong Kong Bill of Rights.  While the cousins were alleged to be connected to politics, the claimed motivation to harm the Applicant originated from a land dispute between the cousins and the Applicant plus his brother.  It did not fall within a Convention reason for persecution risk to be established. Reasonable internal relocation alternative was also found.

4.  The Applicant has not set out any grounds of judicial review in the Form 86 or supporting affirmation against the Board’s Decision.  In the oral hearing before this Court, the Applicant said nothing to substantiate a public law challenge and just emphasized that he had two sons born in Hong Kong.  I told the Applicant this is not something I can take into account in these proceedings.  

5.  I have considered the Board’s Decision vigorously.  Although I have found the Board’s credibility assessment quite troubling, I am unable to detect any reasonable argument that the Board’s Decision, on its totality, was vitiated by public law errors as the part assuming the claim to be credible is in my view impeccably rational.  It is not reasonably arguable that relief should be granted in this case as the result of the Applicant’s petition/appeal would have been inevitably the same.  This application for leave to apply for judicial review is therefore 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