HOSSAIN ASGAR 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:

1.   Form 86 be amended, naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 11 January 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 30 December 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 16 November 2018. 

2.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.  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

4.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be harmed or killed by his younger brother or by his customer.   Insofar as his brother was concerned, he was released on bail for a murder case and he extorted money from the Applicant to pay for his own legal fees and living expenses.  He and his men had previously assaulted the Applicant (with guns showing) when the demands for money were not met.  As for the customer, when the Applicant brought back the ordered products for the customer from Hong Kong, the products were seized by the Indian customs because the Applicant was unable to pay the high customs taxes.  The Applicant tried to explain this to the customer but he would not believe.  The customer asked for money back and threatened to kill the Applicant.  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

5.  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.

6.  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. 

7.  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.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [24-34] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds [3-23] and properly considering Country of Origin information [41-56, 76], the Applicant’s allegations were insufficient to make out any of the applicable grounds [39-59, 60-62, 63-69, 70‑78].  The TCAB specifically held that the Applicant’s evidence “suspicious and unreliable” [35-38], that the disputes which the Applicant claimed to be facing were only private in nature [40], and that the ill-treatment alleged suffered by the Applicant failed to meet the minimum level of severity [67, 70].  These were conclusions that the TCAB was fully entitled to reach.

10.  The TCAB further concluded that state protection was available on the evidence [57, 64].  This was an independent reason to reject the Applicant’s claims.

11.  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 therefore 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