NISAR YASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 651/2021

[2025] HKCFI 6024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 651 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and the Applicant being absent in open court;

1.  Form 86 be amended, 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 dated 7 May 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 26 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) 11 December 2018.

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

3.  The Applicant requested for a hearing of this application. He was absent from the hearing. I see no irregularity in the notification of his attendance.

Background

4.  The Applicant is a national and citizen of Pakistan. In gist, he claims that he faces serious harm or death at the hands of Sunni Muslims because he and his family are Shia Muslims. He claims that Sunni Muslims in his area of Pakistan have threatened and assaulted him and that they have the support of the local politicians. 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

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. 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.

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 state any grounds on which the relief is sought other than merely stating that “…In the order give to the court a more complete picture about my case I would like to adduce [the TCAB Decision]…”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.  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 [47-53]. In particular, the TCAB found that the Applicant’s claims were neither coherent nor plausible, and did not regard any of the Applicant’s claims as credible [42]. The evidence incredulity and implausibility was overwhelming [35-41]. Specifically, the TCAB found that it was not satisfied that the Applicant had established that there were ‘substantial grounds’ which support the conclusion that he would face a real risk of ill-treatment as claimed if he returned to Pakistan because his claims about previous harm were not credible and his own evidence was that Shia, including his own family, were now safe in his community [43-46]. TCAB’s conclusion was plainly correct.

10.  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