ZEB AMIR 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.   The Form 86 is amended on the Court’s own motion, naming the Director of Immigration as the Putative Interested Party; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Pakistan.  By a Form 86 filed on 10 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 10 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of:

(1)   A decision of the Director of Immigration (“Director”) dated 30 May 2018 (“Director’s Decision”); and

(2)   A decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 29 May 2020 (“the TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of his application.  He was notified by post of that scheduled for 4 September 2025, but did not appear at such.  In the circumstances I have dealt with his application on the papers.

3.  As leave is sought in relation to the TCAB Decision, I have amended the Form 86 of my own motion to identify the Director as the proper Putative Interested Party.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.  This is set out in the TCAB 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 his distant relatives Altaf and Tahir, and as the Police would charge him on the basis of a false accusation that he had shot at them;

(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 in the Director’s Decision;

(3)   The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition, as to which a Notice of Hearing was issued by post (and not returned undelivered) to the Applicant on 8 January 2020, with the hearing scheduled to take place on 11 March 2020; and

(4)   Staff of the Director were unable to contact the Applicant to serve the bundle on him in person on 3 March 2020.  Staff of the TCAB/NRCPO were also unable to contact the Applicant on the day prior to the hearing to remind him of such.  The Applicant also failed to attend the scheduled hearing.  The TCAB/NRCPO therefore applied the procedure in s. 15 of Schedule 1A, Immigration Ordinance (CAP. 115) and, as it had received no response in relation to such from the Applicant within the time limit (or indeed by 18 May 2020), proceeded to determine the petition/appeal in his absence and issued the TCAB Decision on 29 May 2020, in which it dismissed the appeal/petition and confirmed the Director’s Decision.

Legal Principles

5.  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).

6.  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).

7.  In order for me to give leave to apply 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

8.  The Form 86 contains several grounds on which Relief is sought, which have been copied almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

(1)   “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision(s) wrongly in assessing my Non‑refoulement claim.  I believe that the decisions were not reasonable and fair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra‑judicial killings that I may face if I am deported back to my country Pakistan.” (Ground 1)

(2)   “From the Director's Decision(s), it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case.  This has indeed led to an unfair outcome of rejecting my non-refoulement claim.  I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 2)

(3)   “I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decisions.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decisions void.  In Fact, the corruption and incompetency of the administration in my country is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament to my assertions.  Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decisions with the arguments put forward above.  As such, the decisions of the director should be considered unreasonable in the scope of Public Law.”  (Ground 3)

(4)   “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response.  The Adjudicator failed to take into account the nexus of political parties & official corruption which exists in my country, making the persecution effectively persecution by the State.”  (Ground 4)

(5)   “The Adjudicator made a ruling to dismiss my appeal/petition in the [TCAB/NRCPO] based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decisions was irrational.”  (Ground 5)

9.  However, once the Applicant 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). The Grounds or portions thereof that relate to the Director and/or the Director’s Decision are hence not reasonably arguable and must be dismissed.  Consequently Grounds 2 and 3 must be dismissed, and when considering the other Grounds I shall ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed.

10.  Furthermore, the remaining Grounds are entirely inadequate as they are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil, supra, at §15).

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 Applicant’s background, procedural and immigration history, summarised the factual bases relied on by him, and outlined the documents (including COI) considered as part of the hearing bundle as well as the four relevant bases of risk and relevant principles (Paragraphs 1 to 31).

13.  The decision-maker than detailed the allegations made by the Applicant’s case, the failure of the Applicant to attend the oral hearing before the TCAB/NRCPO, and how and why it consequently proceeded to deal with and determine the claim in his absence  (Paragraphs 32 to 63).  He explained that the Applicant’s case depended on the credibility of the Applicant and his supporting documents, and gave salient reasons as to why he found that the Applicant’s allegations were not credible (even to the low standard required) and why he was not satisfied that the Applicant warranted non-refoulement protection.  The decision-maker accordingly found that there was no risk real that the Applicant would be subjected to Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk if refouled, the appeal was dismissed, and the Director’s Decision confirmed(Paragraphs 64 to 74).

14.  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 TCAB Decision and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm, and accordingly Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.  In particular:

(1)   As to the remnants of Ground 1, I see no Wednesbury unreasonableness or irrationality in the TCAB Decision, including in its assessment of and conclusions as to BOR 2 Risk; and

(2)   The Applicant has failed to identify the specific facts and matters relevant to the alleged public law errors contained within Ground 4, or relevant to the alleged irrationality as alleged in Ground 5. In any event I see no such procedural unfairness or irrationality as alleged, let alone findings on which the decision-maker ought to have allowed the appeal/petition, or any unreasonable/unfair procedure and/or error of law that tainted any relevant findings and/or rendered any conclusions irrational. Indeed I see no reasonably arguable public law basis for faulting the process or the conclusions, particularly given the findings as to the Applicant’s credibility and evidence.  It is clear from the TCAB Decision that the Applicant’s claims and documents were fairly considered and evaluated by the decision-maker, who gave salient reasons for findings that logically supported and led to the dismissal of the appeal/petition.

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

16.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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