BASHARAT ALI DAR 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:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 June 2021, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 27 October 2020 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1] . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000878_2021_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by his cousins and the members of the Pakistan Tehreek-e-Insaf .  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 8 January 2026.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.    Apart from alleging in the supporting affirmation that “they” did not give him enough time to explain his problems and to bring documents from his country, the applicant provided no other grounds in either his Form 86 or the supporting affirmation.

6.  At the hearing, this court asked the applicant to clarify who were the “they” he referred to in the affirmation. The applicant said that “they” did not refer to the Board. Since the grounds were prepared by his friends, a mistake had been made. He had no complaint against the Board about not giving him insufficient time. Apart from this clarification, the applicant had nothing else to add.    

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, while the Board accepted the FIR regarding the murder of Tariq was genuine, and that Tariq was his cousin/brother-in-law, the Board found the other essential aspects of the applicant’s evidence did not stand up to scrutiny due to the contradictions and the lack of detail.  The Board did not accept that the applicant had been assaulted by the cousins as alleged.  The Board found that the applicant would not face any risk of harm if refouled. It further found that internal relocation was reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. Since the applicant had clarified at the hearing that his complaints in his affirmation were not directed against the Board, the applicant therefore provided no grounds at all in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

9.  The applicant’s 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