HAMID UMAR 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 only the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office as the Putative Respondent and naming the Director of Immigration 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 13 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 1 April 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 18 February 2019.

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

3.  In the Form 86, the Applicant also sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]).

4.  Thus, I treat the decision in respect of which relief is sought to be the TCAB Decision only.

5.  The Applicant requested for a hearing of this application.  When asked whether he had anything to add, he said that he just wanted to stay and did not want to go back.

Background

6.  The Appellant is a citizen of Pakistan.  In gist, he fears that he will be harmed or being killed by PMLN (and/or MNA and MPA) because of his switch of party to PTI.  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.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

7.  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.

8.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would 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. 

9.  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.

10.  The Form 86 sets out various grounds on which the relief is sought. However, they are vague and devoid of substance, and, in truth, did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

11.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [112-118].  In particular, it is clear that the TCAB undertook a careful and nuanced approach: it accepted various aspects of the Applicant’s case e.g. [81, 83, 84]. Given the inconsistencies and vagueness of the Applicant’s evidence in critical aspects of the case, it was not surprising at all for the TCAB to find that the Applicant was not a reliable witness [79], and that it did not accept that the Applicant would face any harm whatsoever at the hands of his claimed enemies specifically, or at the hands of the PMLN generally, or anyone else, if he returns to Pakistan [106].

12.  The grounds stated in the Form 86, in gist, boil down to general accusations that

(1)   The TCAB failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in his case;

(2)   The TCAB overly relied on the Country of Origin Information (COI);

(3)   Other generic complaints of legal and procedural errors.

13.  But, as made plain above, the TCAB did not commit these alleged errors. It paid meticulous attention to the Applicant’s evidence and made nuanced findings. The TCAB did not overly rely on the COI at all. Further, the TCAB had asked the Applicant for comment for the COI [70], and had, on occasions, found in the Applicant’s favour based on the COI e.g. [83].

14.  In reality, the Applicant’s evidence was simply insufficient to support his case, and none of the grounds, in truth, challenges the TCAB’s findings in any meaningful ways, particularly in respect of his credibility.

15.  Also as stated above, the TCAB had applied the correct legal principles and followed the correct procedures.

16.  I have also carefully considered the Applicant’s oral submissions. They do not advance the Applicant’s case.

17.  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 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