AHMED NAVEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2278/2020

[2025] HKCFI 4392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2278 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 Applicant’s Form 86 be amended to name only the TCAB as the putative respondent, the DOI as the putative interested party and the TCAB Decision dated 11 November 2020 as the decision sought to be reviewed; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 18 November 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 12 August 2020, naming the Torture Claims Appeal Board (the “TCAB”) and the Director of Immigration (the “DOI”) as proposed respondents.

2.  From the case record, there was a hearing before the TCAB on 12 August 2020 and by a decision dated 11 November 2020 (the “TCAB Decision”) the TCAB affirmed the DOI’s rejection of the Applicant’s non-refoulement protection claim.

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and amended the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

4.  The Applicant requested for an oral hearing of this application and attended the same. When asked if he had anything to add apart from the documents submitted, he confirmed that he had not.

Background

5.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or even killed by a person (or that person’s family) as that person mistakenly took something the Applicant’s did as an act of revenge against that person. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant exhibited a hand written note wherein he reiterated the danger and threat to his life if he was returned. However, he did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Turning to the TCAB Decision, with in mind the nature of the appeal before it [5], the TCAB comprehensively took into account :-

a.  The Applicant’s case and stance on his claim, state protection and internal relocation [8-27];

b.  The evidence placed before it [29-32], including relevant COIs [62-66];

c.  the correct procedural and substantive principles to apply [34-43, 44-46, 78-79, 81-83, 86-88].

9.  After careful analysis, the TCAB concluded that none of the four applicable grounds under the USM was made out [47-77, 80, 84-85, 89-92].

10.  The TCAB further came to the view that state protection [67-69] and internal relocation [70-75] were available to the Applicant.

11.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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