HUSSAIN TASAWAR 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, adding, in relation to the Name and description of the proposed respondent, the words  “/Non‑Refoulement Claims Petition Office” after the words “Torture Claims Appeal Board” and in place of the words “Immigration Department”, and naming only 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 national of Pakistan.  By a Form 86 filed on 3 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 3 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision said by him to be one of the Torture Claims Appeal Board (“TCAB”), but which is one of the Non-Refoulement Claims Petition Office (“NRCPO”), made on 14 May 2020 (“the NRCPO Decision”)[1].

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

3.  The Applicant sought an oral hearing of his application, which took place and which he attended on 28 August 2025.  He said that he wanted to stay in Hong Kong, and asked me to look into the documents submitted and decide accordingly.

4.  I have amended the Form 86 of my own motion to reflect the role of the NRCPO as a Putative Respondent.

Background

5.  This is set out in the NRCPO Decision, in the USM 21 Decision[2] (defined below, and which decision is not the subject of this leave application), and in HT (Hussain Tasawar) v Betty Kwan [2017] 2 HKLRD 567 (HCAL 20/2015, 17 March 2017).  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 members and/or supporters of the PML-N because of his support for the PPP;

(2)   The claim was assessed on the grounds of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 9 June 2014 (“Director’s 1^st Decision”);

(3)   The Applicant appealed/petitioned the Director’s 1^st Decision, but successfully withdrew such appeal/petition before it was heard. He then applied to re-open and/or reinstate his appeal/petition. The application was heard, and was refused by way of a decision dated 7 November 2014 (“USM 21 Decision”). His application in HCAL 20/2015 for judicial review of the USM 21 Decision was dismissed by Kent Yee DHCJ. on 17 March 2017;

(4)   The Director by a letter dated 17 October 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. As no such submissions were received by the deadline of 31 October 2017, or indeed by 21 November 2017, the Director in a decision of the latter date (“the Director’s Further Decision”) found that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim; and

(5)   The Applicant then petitioned to the NRCPO for relief against the Director’s Further Decision. The petition was dealt with by the same adjudicator who had earlier issued the USM 21 Decision. She held a hearing on 11 March 2020 and subsequently issued the NRCPO Decision in which she held that the Applicant had not made out BOR 2 Risk, and confirmed the Director’s Further 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 does not identify any grounds of judicial review in relation to the NRCPO Decision. As for the Affirmation, that merely says that the Applicant would like to “reject and review” the NRCPO Decision and claims that the NRCPO had “disregard [his] dangerous situation”. Those claims do not amount to a properly particularised ground of judicial review, such as an allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The NRCPO set out the Applicant’s immigration and procedural history which had led to its decision to hold a hearing (Paragraphs 1 to 12), followed by salient considerations and principles in relation to BOR 2 Risk (Paragraphs 13 to 22). It then detailed the evidence, information and matters adduced by the Applicant, including at the hearing before the NRCPO, with a focus on the specific factual assertions made by the Applicant in support of his non-refoulement claim, essential elements of which were clearly tested in some detail at the hearing (Paragraphs 23 to 46).

12.  The decision-maker concluded, with reference to her observations on the Applicant’s evidence as a whole, that the Applicant’s evidence had too many discrepancies (many of which went to the fundamental issue of whether he would face a risk of harm in relation to BOR 2 Risk), that his live evidence was replete with inconsistencies and implausibility, and that she did not, on the totality of the evidence, find him or his evidence credible. She also found that it had not been shown that the alleged perpetrators (being the Pakistani government) posed a real risk of harm, or that the present government or authorities of Pakistan had any interest (adverse or otherwise) in him. Moreover, on the evidence there was sufficient state protection available (Paragraphs 23 to 54). She hence did not accept that he would face BOR 2 Risk if refouled, pointing to there being no evidence showing that the Applicant would be at risk of harm from capital punishment inflicted by the Pakistani government or that he would face harm from the said government which would place his life at risk, and finding that there was indeed nothing in the evidence to show that he would be at risk of BOR 2 Risk if refouled.  The Director’s Further Decision was hence confirmed (Paragraphs 55 to 58).

13.  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 that justifies the grant of leave.  This is especially so in relation to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and state protection, which are matters primarily within the province of the decision-making body. Even if the NRCPO took too narrow a view of BOR 2 Risk[7] (and hence for the sake of argument also as to the risk of harm), it is clear that the decision-maker would in any event have reached the same conclusion as to BOR 2 Risk had she applied the correct, broader test, given her findings as to the Applicant’s credibility, evidence, and state protection (see Kulwinder Kaur [2022] HKCA 49 at §§54-58, Sandhu Vinny [2023] HKCA 1261 at §33). I therefore do not see that such issue, taken on its own, justifies the grant of leave.

14.  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

15.  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