ALI BASHARAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 519/2020

[2025] HKCFI 3058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 519 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 Form 86 is amended on the Court’s own motion, naming the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and adding the words “/Non-Refoulemnt Claims Petition Office” after the words “AGAINST TCAB”;

2.   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 dated 30 March but filed on 7 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation dated and filed on 7 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision, described in the Form 86 as being one of the Torture Claims Appeal Board (“TCAB”), made on 30 March 2020.

2.  The Affirmation refers to how his case was refused by “Imigration(sic)”, how he would like to “appl(sic) against immigration(sic) decision so kindly review”, and exhibits a decision dated 30 March 2020 concerning the Applicant’s claim for non-refoulement relief on the basis of BOR 2 Risk[1], BOR 3 Risk[2], and Persecution Risk[3] and identifying itself as a decision of the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”) (“the TCAB Decision”)[4].

3.  Prior to the TCAB Decision, the Director of Immigration (“the Director”) had rejected the said claims of the Applicant in a decision dated 26 April 2018 (“Director’s Decision”).

4.  No grounds for judicial review are set out in the Form 86 or the Affidavit.

5.  The Applicant did not seek an oral hearing of his application and I have hence dealt with it on paper.

6.  I do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application stands only to be rejected, and I do so, given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

7.  In the circumstances, I have amended the Form 86 of my own motion to correct the spelling of the names of the TCAB/NRCPO which are named as the only putative respondents, to name only the Director of Immigration as the putative interested party, and to reflect the role of the NRCPO in making the TCAB Decision.

Background

8.  The Applicant’s background and case as to the incidents underlying his claim non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 18, 28). For the sake of concision, I will not repeat them, but in essence:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that he will be harmed or killed if refouled due to his political opinion as he, as a worker of the Pakistan Muslim League (Q) (“PML(Q)”), had opponents being people in the Pakistan People’s Party and in the Pakistan Muslim League (N);

b.  His claim for non-refoulement relief on the basis of Article 3 of the Convention Against Torture (“CAT”) was earlier rejected by the Director on 23 December 2011 (which is essentially the same as a claim for Torture Risk[5]), and the Applicant sought no further recourse in relation to such;

c.  His claims for non-refoulement under the USM were assessed and rejected on the basis of BOR 2 Risk, BOR 3 Risk, and Persecution Risk by the Director in the Director’s Decision, with updates on the situation regarding the status of his claims as raised in his CAT Claim, including with reference to an alleged incident from February 2018 identified and considered in the TCAB Decision as the second shooting; and

d.  The Applicant sought recourse against the Director’s Decision, pursuant to which an oral hearing was held on 22 July 2019 at which the Applicant gave evidence with the assistance of interpretation. Eventually, his claims under BOR 2 Risk, BOR 3 Risk, and Persecution Risk were rejected in the TCAB Decision.

Legal Principles

9.  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, HCAL 21/2015, 22 December 2016, at §142).

10.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB 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 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: see 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.

11.  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 (Peter Po Fun Chan v Winnie Cheung & Anr (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

12.  Here, the Applicant has not identified or set out any grounds of judicial review. There is hence no 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 TCAB Decision.

13.  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.

14.  The TCAB Decision outlines the relevant grounds, the Applicant’s procedural and immigration history, and the documents before the decision-maker. It sets out the general conduct of and approach taken in relation to the oral hearing, including how the Applicant adopted information he had submitted as evidence, that he answered questions, matters relating to interpretation, and that there was discussion of the Applicant’s non-refoulement claim under the relevant grounds on which he was given an opportunity to make submissions. It also summarises the nature of the Applicant’s claims as set out in the documents that he had adopted as his evidence (Paragraphs 1 to 18, 28).

15.  There follows a section on the contents of Persecution Risk, BOR 3 Risk, and BOR 2 Risk, citing relevant case law and principles (Paragraphs 19 to 26). This is followed by a summary of the relevant evidence and COI considered, and of the approach and principles applied to the evidence, including as to the level of risk required, internal relocation, state protection, the responsibility of the Applicant and the TCAB/NRCPO (including the requirement of a high standard of fairness and joint endeavour), and principles relating to hearsay evidence and the benefit of the doubt (Paragraphs 27 to 30).

16.  The next section contains an analysis and conclusions drawn as to the credibility and effect of the Applicant’s evidence, and his claims adduced in support of his claim, with particular regard to the Applicant’s apparent support for PML(Q) and the incidents he had placed reliance on. This covered multiple salient topics. Adequate reasons were given for reaching such conclusions, which included a finding that the Applicant was not a credible witness, rejections of the core components of the Applicant’s factual claims underlying his claim for non-refoulement, and a finding that the Applicant had fabricated such claims to create a basis on which to apply for non-refoulement protection (Paragraphs 31 to 39).

17.  Given the evidence before it, the decision-maker then found that he did not need to make findings in relation to internal relocation, and that there was no Persecution Risk, BOR 3 Risk, or BOR 2 Risk. The non-refoulement claim was hence rejected as being unsubstantiated on those grounds and the Director’s Decision was confirmed (Paragraphs 40 to 51).

18.  Despite the aforesaid examination and scrutiny, I do not 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 which vitiates the TCAB Decision[6]. This is particularly so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence and story in support of his claim, and consequently the risk of harm, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the primary decision-maker.

19.  Given the above, I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

20.  In the circumstances, I have ordered that the Form 86 be amended as described above, and 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