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

HCAL 3871/2019

[2025] HKCFI 2493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3871 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 27 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 19 December 2019 with reference no. USM 10587/18/3/39/P2037.  He named the Torture Claims Appeal Board (the “TCAB”) as the proposed respondent and also an interested party.

2.  From the papers filed for this application, there was a decision by the TCAB with the above reference no. dated 19 December 2019 (the “TCAB Decision”) that affirmed the decision by the Director of Immigration (the “DOI”) dated 21 February 2018 refusing the Applicant’s non-refoulement protection claim.

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

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis of a threat to life made by people of opposing political affiliation in Pakistan.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case 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.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant raised a number of complaints under irrationality in terms of failure to consider, or wrongly considered, certain factual or legal matters, procedural impropriety in terms of insufficient inquiry or reasons etc..  They are mere assertions and appear generic, repetitive and overlapping.

8.  Looking at the TCAB Decision, the TCAB applied the correct principles in respect of the four applicable grounds under the USM [3-13], including the standard of proof [14-19].  The law in respect of factual assessment approach was also correctly identified [20-23]. 

9.  The Applicant’s case and all the available evidence were before the TCAB [24-35], including the decision by the DOI [36] and the COI considered by the DOI [55], the Applicant’s testimony at the oral hearing [38-45].  After careful consideration the TCAB came to the conclusion that the Applicant’s allegations were not made out [46-54].  The TCAB further concluded that state protection was available [55-57] and there was no reason why internal relocation would not be available [58].

10.  All in all, the Applicant’s complaints in his affirmation are invalid and I have not otherwise detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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