MEHMOOD AMJAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1346/2020

[2025] HKCFI 5228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1346 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 1^st Putative Respondent in place of the “TORTURE Claim Appeal Board”, naming only the Director of Immigration as the Putative Interested Party, and substituting “Relief from the decision of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 17 June 2020” in place of the words “Relief from the decision of Torture Claims Appeal Board/”; and

2.  The application for 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 filed on 29 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 29 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”)) made on 17 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application. At such, I pointed out that the Form 86 identified the relevant decision as apparently one of the TCAB and of the Director of Immigration (“Director”) dated 17 June 2020, but that the Director’s Decision (defined below) was dated 12 February 2019. I asked the Applicant if he sought leave in relation to the latter, to which he responded “I have mentioned my case already and there is nothing else to it”, and later that I should “look at all the documents of [his] case and the decision they have made and give your decision accordingly”.

3.  I have hence amended the Form 86 of my own motion to reflect the nature of the TCAB Decision, the identities of the proper 1^st Putative Respondent, the Putative Interested Party, and the TCAB Decision as being the subject of the application. Given the Applicant’s comments, I have not amended the Form 86 to remove his identification of the Director as a putative respondent.

4.  The Applicant also made some other submissions at the hearing in relation to his application, which I have set out and deal with below.

Background

5.  This is set out in the NRCPO Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by Shia Muslims;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 12 February 2019 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 6 September 2019; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 17 June 2020, in which it found that the Applicant’s appeal/petition failed on all applicable grounds and confirmed the Director’s Decision.

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, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide 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 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/NRCPO. (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 (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] HKCA 14, at §23).

Discussion

9.  The Form 86 does not identify any grounds of judicial review, or advance any allegation of 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 or the Director’s Decision.

10.  There is also no basis for the Applicant to (if that is what he had intended) seek leave in relation to the Director’s Decision, and any complaints in relation to such are not reasonably arguable, since once he had pursued his appeal to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

11.  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 and bearing in mind the need for a high standard of fairness.

12.  The TCAB/NRCPO set out the core allegations by the Applicant, his background, and his immigration and procedural history (Paragraphs 1 to 13). It then explained the contents of the Hearing Bundle and COI, outlined the conduct of the hearing, and stated that it had considered all of the Applicant’s evidence and submissions (Paragraphs 14 to 25).

13.  After a summary of the structure of the decision (Paragraphs 26 to 27) the TCAB/NRCPO identified the material information provided as based on the information provided by the Applicant to the Director (Paragraphs 28 to 78), by way of testimony at the hearing (Paragraphs 79 to 184), and the Applicant’s submissions (Paragraphs 185 to 191). It then detailed the approach, with regard to relevant principles, that it had adopted in assessment of the material information and evidence before it (Paragraphs 192 to 207).

14.  The TCAB/NRCPO then set out its findings as to the evidence and credibility (Paragraphs 208 to 221). In the latter section it rejected, for detailed reasons set out therein, the Applicant’s information and evidence advanced in support of core portions of his claim (Paragraphs 211(1) to 211(5)) as not credible, which matters it had said it would disregard in relation to the claim for non-refoulement relief (see Paragraph 203 to 204).

15.  The decision-maker then turned to the four applicable types of risk, the principles relevant to assessment of risk of harm and origin, then assessed each of the four types of risk. He concluded that on the basis of the facts and COI, there was no real risk that the Applicant would be harmed if he were refouled to Pakistan or his habitual place of residence, state protection was available, and the Applicant did not qualify for non‑refoulement protection on any of the four relevant grounds. Moreover, even if the alleged harm was credible, the Applicant could reasonably relocate to Islamabad, Karachi, or Lahore. Accordingly, the Director’s Decision was confirmed (Paragraphs 222 to 347).

16.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the NRCPO Decision and justify the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and the risk of harm, which are all matters primarily within the province of the decision-making body. Nor do I see any reasonably arguable public law basis to vitiate the decision-maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

17.  In the Affirmation the Applicant says that he does not agree with the NRCPO Decision “because I have problem in my country” and asks for help to stay in Hong Kong. However, I do not see how such bare allegations are relevant to the issues before me or assist the application for leave, given the aforesaid findings in and analysis of the TCAB Decision, and as judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (Lakhwinder Singh, supra). For the same reason, I do not see or accept how it could be appropriate for me to “look into [his] case as a whole” as he suggested at the hearing.

18.  There is hence no basis for the court to intervene by way of judicial review, and 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 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