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

HCAL 681/2020

[2025] HKCFI 2949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 681 of 2020

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 be amended on the Court’s own motion, naming only the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and adding in the section of the Judgment, order, decision or other proceeding in respect of which relief is sought, the words “the Non-Refoulement Claims Petition Office/” after the word “of”; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Pakistan. By a Form 86 dated and filed on 17 April 2020 (“Form 86”), the Applicant sought leave to commence judicial review as regards “23-Dec 2019, my appeal dismissed by the Adjudicator of [Torture Claim Appeal Board(“TCAB”)]”.

2.  The Form 86 was accompanied by a supporting affirmation also dated and filed on 17 April 2020 (“the Affirmation”), described therein as being an affirmation for leave to apply for judicial review “for my Non-refoulement claim decision against the [Director of Immigration (“Director”)] on 26-June 2018, As well as decision against The Adjudicator of [TCAB] dismissed my appeal on, 23-Dec 2019. Seeking Judicial Review for my claim.”

3.  However, the Affirmation only exhibited a document which while describing itself as a decision of the TCAB and the Non-Refoulement Claims Petition Office (“NRCPO”) and dated 23 December 2019 (“the TCAB Decision”)[1], concerns the Applicant’s claim for claim for non-refoulement protection on the basis of BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4].

4.  No grounds for judicial review are set out in the Form 86 or the Affidavit.

5.  Pursuant to the above, and a brief exchange I had with the Applicant at the oral hearing, I did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application would stand only to be rejected, and I do so. Such an application is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  In the circumstances, and given the scope of the TCAB Decision as set out below, I have therefore amended the Form 86 of my own motion as set out above.

Background

7.  The salient portions of the Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 11). I will not repeat them but, in essence and for present purposes:

a.  The Applicant had made an earlier claim for non-refoulement protection on the grounds of Torture Risk[5] which was rejected on 27 January 2014 (“the Torture Risk Decision”), which claim was then not taken further.  The Torture Risk Decision has not been placed before me and is not said to be the subject of or relevant to the present application;

b.  On 5 February 2014, the Applicant made a second claim for non-refoulement protection which was assessed on the basis of BOR 2 Risk, BOR 3 Risk, and Persecution Risk, premised on the fear that he will be seriously harmed or killed by people from the Muttahida Qaumi Movement Party (“MQM”), a Pakistani political party, in association with the Police[6] due to an accusation that the Applicant had killed a member of the MQM named Ahmed (“Ahmed”); and

c.  Those claims for relief on the basis of BOR 2 Risk, BOR 3 Risk, and Persecution Risk were rejected in the Director’s Decision. The Applicant then sought relief within the two-tier structure mentioned above. After the oral hearing of his claim on 4 October 2019, it was held in the TCAB Decision that the Applicant’s claim failed and the Director’s Decision was affirmed.

8.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. As the application for leave was made around 3½ calendar weeks after 23 March 2020 (being 3 months from the date of the TCAB Decision), I also asked the Applicant at the oral hearing what the explanation was for the delay. He initially insisted that there was a mistake, as he had applied within the 3-month period and had not missed the deadline as he always applied ahead of deadlines. Eventually, he said he could give me no reason why he had only filed the application after the period had elapsed. However, I address this issue further below given that the 3-month period expired during the General Adjourned Period (“GAP”).

Legal Principles

9.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

10.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising a decision of the TCAB/NRCPO due to the seriousness of the issue at hand, the 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/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

11.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA14, at §23).

12.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where (as in this case) an Applicant applies for leave to apply for judicial review more than 3 months after the TCAB Decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii)  the explanation for the delay (iii) the merits of the substantive application (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §§23 to 36, Thomas Lai [2014] 6 HKC 1 at paragraphs 43 to 45 as also cited in AW, supra, and H v Director of Immigration (2020) 23 HKCFAR 248 at paragraphs 17-22, 36-44 citing inter alia both AW, supra, and Thomas Lai, supra. See also Re Hariatiningsih [2021] HKCFI 1194 at paragraphs 12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

13.  Although the Applicant did not bring to my attention any explanation for the delay in filing the application for leave, I am prepared to approach the matter of delay by approaching the matter on the basis, and in the Applicant’s favour, that there has been (at worst) only a delay of some 2½ weeks, and that such is only of a relatively minor nature given the unusual circumstances at the time[7].

14.  As the Applicant has not identified or set out any grounds of judicial review, there is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the arguability test, the significance of the merits of the substantive application in relation to whether there is “good reason” to extend time, and the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

15.  The TCAB Decision sets out the Applicant’s procedural and immigration history, the documents before it and the fact that the Applicant attended the hearing and answered questions with the assistance of an interpreter, followed by the background to the Applicant’s claim for non-refoulement relief and a summary of the conclusions from the Director’s Decision (Paragraphs 1 to 11).

16.  This is followed by an outline of the relevant grounds relied on by the Applicant, the relevant approach to be applied to such in relation to the burden and standard of proof, and how to assess credibility in establishing the facts (Paragraphs 12 to 21).

17.  There is then a section concerning the findings made and reasons for such, in which it was firstly recognised that the facts of the Applicant’s claims had to be established in relation to his past experiences in Pakistan, and that the Applicant had to be questioned in order to assist him to provide detailed and coherent evidence, and to test his assertions (Paragraph 23). The TCAB Decision then sets out in some detail the analysis of and views on the Applicant’s evidence (including oral evidence before it from the Applicant), behaviour, and relevant COI relating to the factual claims on which the Applicant founded his case. Ultimately, other than it being accepted that the Applicant was a national of Pakistan, it was concluded that the Applicant had failed to discharge a “relatively low burden” in relation to his factual claims, that he had invented his claim, that “no credence could be given” to any of his statements or any of the assertions he had made, and that those factual claims were not established (Paragraphs 22 to 37).

18.  The TCAB Decision then goes on to outline (as it was entitled to given the above) that given the findings, and on the evidence including other background information identified within the TCAB Decision, the Applicant faced no Persecution Risk, BOR 2 Risk, or BOR 3 Risk by dint of his being a Pakistani male, rejected the Applicant’s appeal, and affirmed the Director’s Decision (Paragraphs 38 to 41).

19.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law[8], and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying his claim, and consequently Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body. Moreover, there are adequate reasons for the conclusions that it had reached. There is hence no basis to interfere with such findings of fact on matters which are primarily within the province of the decision-making body.

20.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. I therefore see no good reason to extend time for leave to apply for judicial review, and do not consider that I should grant such an extension. I hence refuse to grant such an extension and to grant leave to apply for judicial review.

21.  Even if I were to approach the matter on the basis that there has been no delay on the part of the Applicant, I would still, and I do, refuse to grant leave to apply for judicial review, given that there are no reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

22.  In the circumstances, I have ordered that the application for leave to apply for judicial review be 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