HUSSAIN TAJAMMAL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1416/2020

[2025] HKCFI 5515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1416 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 the Applicant being absent in open court;

1.   The Form 86 is amended on the Court’s own motion, naming the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative 2^nd Respondent in place of “Torture Claims Appeal Board”, substituting “The decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office” in place of the words “The Decision of the Adjudicator”; and

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

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan.  By a Form 86 filed on 8 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 8 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Director of Immigration (“Director”) dated 13 November 2017 (“Director’s Decision”), and a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 23 June 2020 (“the TCAB Decision”)[1].

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  The Applicant sought but did not attend the oral hearing of his application as scheduled on 20 August 2025.  I have therefore dealt with his application on the papers.

4.  I have amended the Form 86 of my own motion to reflect the identity and role of the TCAB/NRCPO, as well as the nature of the TCAB Decision.

Background

5.  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 Dr. Suhail due to a land dispute and a personal vendetta;

(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 dated 13 November 2017, against which the Applicant filed a Notice of Appeal/Petition;

(3)  The TCAB/NRCPO held a hearing in relation to the Applicant’s non‑refoulement claim on 10 January 2020, at which the Applicant was represented by a lawyer provided by the Duty Lawyer Service; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 26 June 2020, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

6.  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).

7.  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).

8.  In order for me to give leave 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

9.  The Form 86 includes an “Enclosure (2)” which appears to contain various grounds of judicial review, of which those numbered (1) to (8) relate to the Director’s Decision. However, once the Applicant had sought to appeal/petition 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).  Hence those grounds are not reasonably arguable, and must be dismissed. 

10.  The remaining paragraph of “Enclosure (2)” contains the following allegations:

(1)  The TCAB/NRCPO “failed to make sufficient enquiring(sic) before finalizing the determination”; (Ground 9) and

(2)  “[The TCAB/NRCPO] stated that the applicants(sic) has failed to advice(sic) any credible evidence to prove material elements of them(sic) claim.  It is to be noted that the applicants(sic) are torture-claimants(sic) whose(sic) has no limited options at his disposal to bring them evidence before the tribunal, and that to when they(sic) are in Hong Kong, under custody at the Immigration Hong Kong. [The TCAB/NRCPO] “has failed to give sufficient chance to the applicants(sic) to arrange relevant evidence to them(sic) non-refoulement claim as well as them(sic) appeal.”  (Ground 10)

11.  The Affirmation also advances the complaint that “The [Director] and [TCAB/NRCPO] failed to take into account many things and issues.” (the Complaint) Given the discussion above, I have only considered the Complaint insofar as it relates to the TCAB/NRCPO.

12.  If Ground 9 and/or the Complaint advance(s) some sort of complaint in addition to that mentioned in Ground 10, it/they are entirely inadequate as it/they merely consist of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why and how there was/were such alleged failures, and the effect thereof, on the process of reaching, and conclusions in, 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 §24; 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 [2021] HKCA 1616 at §15). Indeed, the same could be said about Ground 10 given the matters discussed at Paragraph 17(1) below.

13.  Nevertheless, given the seriousness of the issues at hand, and given the broad allegations raised by Grounds 9 and/or 10 and the Complaint, 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, and both Grounds. 

14.  The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history (including that he had been released on recognizance on 16 March 2016), the four relevant grounds for non-refoulement relief, and the material in which the claim was contained (Paragraphs 1 to 7), followed by the claims made to the Director via various documents, including those which he had provided to the Director, and the contents of an interview (Paragraphs 8 to 36).  The decision-maker then set out the non-refoulement claims as made to the TCAB/NRCPO including via the Director’s and the (legally represented) Applicant’s skeleton submissions (Paragraphs 37 to 51), the conduct of and events at the hearing before the TCAB/NRCPO including details of the Applicant’s testimony regarding salient issues including those discussed below (Paragraphs 52 to 83), and the parties’ closing submissions (Paragraphs 84 to 95).

15.  At Paragraphs 96 to 136 the decision-maker then discussed the Applicant’s claim and evidence in detail, with regard to the earlier portions.  She accepted that the Applicant was who he claimed to be, was a citizen of Pakistan, and that his non-refoulement claim should be assessed as against Pakistan. She referred to the relevant principles and approach, as well as relevant COI, and set out her conclusion that on the evidence the Applicant had fabricated the entirety of his claims regarding the land dispute with a person named Dr Suhail, followed by her underlying findings and reasons for such with reference to the relevant principles, and material before her. In particular, she did not accept core aspects of the Applicant’s claim including:

(1)  That the Applicant had a dispute with a Dr Suhail in relation to property owned by himself or his brothers, that Dr Suhail was tenant of the Applicant who wanted to acquire ownership of the property, that they had a dispute or that a false case was filed against the Applicant and his brothers in March 2011 via an FIR by Dr. Suhail, and the attendant alleged consequences to the Applicant and his brothers of injury, hospitalisation, hiding, surrender, and/or imprisonment. Indeed, the decision-maker was not satisfied that the FIR from Dr. Suhail as submitted by the Applicant was genuine, and found that it was fabricated;

(2)  That the Applicant was facing false charges or there was an ongoing court case in relation to any assaults against Dr Suhail and his family, that the Applicant was in hiding at any time or that he had any reason he would have to be in hiding in Pakistan, any claims in relation to further court cases in Pakistan, and that he had to bribe authorities at the airport in order to depart Pakistan (since it was not accepted that he was wanted in relation to any offences in Pakistan); and

(3)  That Dr Suhail or his sons or associates had issued threats to the Applicant through his family since his departure from Pakistan, and that the Applicant left Pakistan and came to Hong Kong for any of the reasons he had put forward in his application.

See in particular Paragraphs 11 to 27, 31, 114 to 118, 127 to 136.

16.  Given that the TCAB/NRCPO found that the Applicant’s claims were false and the document he provided had been fabricated, it was not satisfied that there was a real chance, a real risk, or substantial or strong grounds for believing he would be subject to judicial or police inquiries or conviction or imprisonment in relation to outstanding charges, for believing he would be pursued by Dr Suhail or any other persons upon his return to Pakistan.  The decision-maker also accepted that the risks to ordinary Pakistanis arising from ongoing sectarian and political violence were low[6]. There was hence no real chance, real risk, or substantial grounds for believing he would suffer harm amounting to torture, CIDTP, a risk to his life, or persecution upon return to Pakistan (Paragraphs 136 to 141).  Given those findings it unsurprisingly found that none of the four types of risk had been substantiated, found the Applicant was not entitled to non-refoulement relief, refused the appeal/petition, and confirmed the Director’s Decision (Paragraphs 142 to 161).

17.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was any 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/are sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  In particular:

(1)  I do not consider that the allegations in Grounds 9, 10, and/or the Complaint (whether considered separately or together), raise any such reasonable argument, or indeed any failure to meet the high standard of fairness as explained in TK v Jenkins & anor [2013] 1 HKC 256, in particular at §§19-27:

i.     The Applicant was released on recognizance on 16 March 2016, was legally represented both before the Director and before the TCAB/NRCPO, and nearly 2 years had elapsed between the Director’s Decision and the hearing before the TCAB/NRCPO, hence he had ample opportunity to arrange relevant evidence in support of his claim;

ii.   The Applicant has not provided any specifics of the enquiries that should have been made, or the “relevant evidence” to his appeal that he claims could or should have been arranged if given a “sufficient chance”, or indeed of the “many things and issues” that he says the TCAB/NRCPO failed to take into account.  Nor has he explained how any alleged failure to make inquiries, take into account such things and issues, and/or to allow him to arrange evidence, have affected, impeached, or vitiated the analysis or conclusions reached in the TCAB Decision;

iii.   From the documents, the issue of lack of supporting documentation was raised by the TCAB/NRCPO during the hearing, which was followed by a vague suggestion apparently only made at the end of the Applicant’s oral evidence that the Director and/or the TCAB/NRCPO “go to Pakistan” to make inquiries to “check out” his claims (Paragraphs 79, 83, 89, 130, 131). However, there is no legal or legislative basis to require the TCAB/NRCPO to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208);

iv.   Further and in any event, the suggestion contained no particulars as to what specific and relevant inquiries should be made and/or what specific and relevant assistance/opportunity should be afforded by the TCAB/NRCPO, let alone any explanation of any difficulties encountered or anticipated in obtaining relevant documents or evidence. Nor was the suggestion pursued or any application made by the Applicant’s legal representatives (Paragraphs 92 to 95). Indeed, I have not been referred to any evidence of any other complaint, request, or application for more time and/or an adjournment to enable the Applicant (or the TCAB/NRCPO) to obtain any further relevant documents and/or make any relevant further inquiries;

v.    Accordingly, I see no reasonably arguable public law basis (including breach of the high standard of fairness) that would vitiate the approach and attendant conclusions at Paragraphs 98 and 127 to 131, and hence any consequent conclusions such as those at Paragraphs 132 et seq.; and

vi.   I hence do not see any reasonably arguable case that such Grounds and/or the Complaint are made out even with reference to rigorous examination and anxious scrutiny the facts of this case.  Rather, the TCAB/NRCPO applied a high standard of fairness, considered the relevant evidence and COI before it, and gave sufficient reasons for its conclusions on salient issues.

(2)  Further to the above, and in particular, I do not see any reasonably arguable public law error sufficient to vitiate (let alone justify the grant of leave in relation to) the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm which are matters primarily within the province of the decision-making body.  Nor is there hence any public law basis to similarly vitiate or justify the grant of leave in relation to the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

18.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

19.  In the circumstances, I have made the orders above, including that the 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