IMRAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 662/2020

[2025] HKCFI 2779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 662 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 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party;

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 dated and filed on 15 April 2020 (“Form 86”), which was accompanied by an supporting Affirmation also dated and filed on 15 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) made on 27 March 2020 (“the TCAB Decision”)[1].

2.  As the Form 86 identifies the TCAB and the Immigration Department as the putative respondents and does not identify a putative interested party, I have amended the Form 86 of my own motion to name the TCAB/Non-Refoulement Claims Petition Office as the only putative respondent, and the Director of Immigration as the putative interested party.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim non-refoulement relief, the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 4), as well as in the decision by the Director of Immigration dated 26 October 2018 (“Director’s Decision”) which is expressly referred to in Paragraph 3 of the TCAB Decision. For the sake of concision, I will not repeat them, but in essence:

a.  The Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stems from a fear that he will be harmed or killed by the family of Muhammad Arshad (“the Arshads” and “Arshad”) because the Applicant’s brother had killed Arshad; and

b.  The said non-refoulement claims were rejected by the Director’s Decision. The Applicant then filed a petition to the TCAB, and an oral hearing was held by the TCAB on 18 December 2019 at which the Applicant gave evidence. Eventually, the TCAB rejected the said non-refoulement claims in the TCAB Decision.

4.  No grounds for judicial review are set out in the Form 86 or the Affidavit. The latter merely exhibits the Director’s Decision, the body (without attachments) of the Applicant’s Non-Refoulement Claim Form dated 10 November 2016 (“NCF Body”), and the TCAB Decision, and says that the Applicant wishes to adopt them “as my fear not to return to my country”.

5.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. He said he was just asking for some time so that he could resolve his issues, and that he had nothing else to add.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016, at §142).

7.  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 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 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 the decision of the Board 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: 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.

8.  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 (Peter Po Fun Chan v Winnie Cheung & Anr (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] HKCA 14, at §23).

Discussion

9.  Here, 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 the TCAB Decision. Nor is there any allegation of any error of law in the TCAB Decision, or that any portion of the TCAB Decision is irrational/fails to meet the enhanced Wednesbury test.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

11.  The TCAB Decision summarises the Applicant’s case, the evidence that he gave before the TCAB, then sets out the relevant burden of proof, principles and approach which were used to assess the evidence (Paragraphs 3 to 13).

12.  Crucially, the TCAB took the view that it was unwilling to attach any credence at all to the Applicant’s story in support of his claim. Fairly read and in particular, it did not accept as credible the Applicant’s claim and evidence that he and his family were (for the reasons he had advanced) being pursued in Pakistan by the Arshads who were allegedly rich and powerful. The TCAB also gave adequate reasons for doing so (Paragraphs 14 to 19, 31, considering Paragraphs 3 to 5 and the Director’s Decision as referred to therein).

13.  The TCAB then went on to assess, again with adequate reasons, the risk of future harm as being low given the availability of state protection (Paragraphs 20 to 24), and that in the circumstances the Applicant could safely and reasonably relocate to a different part of Pakistan other than his home village (Paragraphs 24 to 29).

14.  There was therefore no Persecution Risk (with the TCAB specifically stating that it had found that the Applicant’s “claim is not credible”), BOR2 Risk, or BOR3 Risk (being a finding “on the evidence”). Nor was there any Torture Risk, “for the reasons set out above”, and absent any claim or evidence of a consistent pattern of gross, flagrant, or mass violations of human rights in Pakistan (Paragraphs 30 to 44).

15.  Finally, the TCAB rejected the Applicant’s claim for the reasons “set out above” (Paragraph 45).

16.  Despite rigorous examination and anxious scrutiny, I do not 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, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. This is particularly so as to and given the assessment, reasoning, and findings rejecting the Applicant’s evidence and story in support of his claim, and consequently the risk of harm, Persecution Risk, Torture Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB. There is hence no basis to interfere with the TCAB’s findings of fact on matters which are primarily within its province.

17.  As for the Applicant’s vague and unsubstantiated claim at the oral hearing, I do not see how this assists his application or is relevant to the issues before me in any way. I therefore reject such as being irrelevant.

18.  Given the above, I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

19.  In the circumstances I have ordered that the Form 86 be amended as described above, and 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