INJUM 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, naming only 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 by inserting “Member of the Torture Claims Appeal Board/” after the words “Decision made by”;

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan.  By way of a Form 86 filed on 29 June 2020 (“Form 86”), and a supporting affirmation also filed on 29 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 27 January 2017 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  For the sake of completeness, I record that in the TCAB Decision, the Director’s Decision (defined below), and the Director’s Further Decision (also defined below), the Applicant’s name is recorded as “GHULAM RASOOL, Injum @ Anjum”.

2.  The Applicant sought and attended the oral hearing of his application on 15 August 2025.  He was assisted by an interpreter and said that he did not want to say anything in addition to the matters set out in the papers, or about the delay in applying for leave, notwithstanding that I had pointed out to him that his application was out of time, the relevant deadline for applying for leave, and that his application was hence over 38 months late.  He also claimed that his wife was Chinese and that he was “just waiting for HKID card, once that is clear then that is it”, but said that he still intended to continue with his application, that he had spoken the truth and told me what the situation was, and that he was not relying on the fact of his marriage in relation to his leave application.

3.  Given the above, I have amended the Form 86 of my own motion to reflect the identities of the proper Putative Respondent, the Putative Interested Party, and the nature of the TCAB Decision.

Background

4.  This is largely 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:

a.   The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Pakistan he would be harmed or killed by Mr Latif and Mr Iqbal and some unspecified people belonging to the PMLN because he had, in the past, supported the PPP;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 9 February 2015 (“Director’s Decision”);

c.   The Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 27 October 2015, at which the Applicant had his rights explained to him and was offered time to consider such, but decided not to testify; and

d. The TCAB/NRCPO then issued the TCAB Decision on 27 January 2017, in which it found that the Applicant had failed to establish a case for non-refoulement relief on the basis of Torture Risk, BOR 3 Risk, or Persecution Risk, and confirmed the Director’s Decision.

5.  Purely for the sake of completeness:

a.   After the TCAB Decision had been made, the Director by a letter dated 24 March 2017 invited the Applicant to submit additional facts relating to his non‑refoulement claim on all applicable grounds, including in relation to BOR 2 Risk[5].  The Applicant failed to do so by the deadline of 7 April 2017. The Director then, by a decision dated 3 November 2017 (“Director’s Further Decision”), rejected the Applicant’s claim for non-refoulement protection under BOR 2 Risk;

b.  As the Applicant did not petition for relief to the NRCPO, his BOR 2 Risk claim was hence finally determined by the Director’s Further Decision pursuant to s. 37V Immigration Ordinance (CAP. 115)[6]; and

c.   From the papers and the hearing I do not see any indication, and I hence do not consider, that the Applicant has sought leave to apply for judicial review in relation to 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).

9.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[7] (iii) the merits of the substantive application[8] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.  Dealing, firstly, with the question of delay, there is no request for an extension of time to make the application in the Form 86.  Nor has the Applicant given any, let alone any acceptable, explanation for the substantial and undue delay in filing the leave application over 41 months after the date of the TCAB Decision.  I would and hence refuse the application for leave on the grounds of delay alone, even if the complaint were premised on strong grounds (which it is not for reasons explored below).

11.  As to merits, no grounds for judicial review are set out in the Form 86.  However, in the Affirmation, and in a document exhibited thereto dated 29 June 2020 and signed by the Applicant[9] (both of which are in English and signed by the Applicant with no interpretation clause), the Applicant claims that:

a.  He is not satisfied with the TCAB Decision and wishes “to appeal” to the Court, asserting that due to his background if refouled he will be in danger, the “politically connected people in my home town are very powerful and consider me there as my enemy” and that there are “substantial ground to consider which I submitted for my torture Claims were neglected by” the TCAB which he says refused his claim on “unfounded” grounds.  This is followed by his reiteration of the general background and facts relied on in relation to his claim, as had been canvassed before the Director and the TCAB/NRCPO in, respectively, the Director’s Decision and the TCAB Decision; (“Complaint 1”)

b.  The Applicant alleges that the Director and TCAB “Failed to conduct inquiries from reliable sources and did not fully study the realities of my case and aftermath in case I am being forced to return to my home town.  Decision maker just refused my Appeal without any reasonable ground”; (“Complaint 2”)

c.   “In the light of new law, relocation is practically impossible as the fight against terrorism touches new high state protection infect(sic) is non-exist, the decision is betrayed a bias and formula approach unlikely fairly access the danger of life”; (Complaint 3)

d.  “Recently, Latif and Iqbal occupied the farm land owned by my family which was located near our home.  The land was about 20 Marla with a value of about 60,000 Pakistan Rupees per Marla” (“Complaint 4”);

e.  A request that he be assigned a “professional interpreter well-versed in Urdu and Panjabi.  I do not understand other Language.” and “I will tell you other all details in the High Court of Hong Kong during oral hearing.  I request you for fix oral hearing.  Please look into my matter.”  (Complaint 5)

12.  Insofar as Complaints 1 (and any related portion of Complaint 5) are an attempt to “appeal” against the TCAB Decision, and/or re-argue the merits of the Applicant’s non‑refoulement case, this is entirely misconceived, given the nature and purpose of judicial review proceedings and the court’s role in relation to such.  They do not and cannot therefore amount to arguable grounds of judicial review.

13.  As to what remains of Complaint 5, I do not see how this raises anything relevant to the present proceedings given that:

a.  As I have mentioned, the Affirmation, and the document exhibited to such are in English, and were both signed by the Applicant with no interpretation clause.  This indicates that the Applicant either understood English, or has access to and would have been able to seek interpretation services and language assistance if necessary; and

b.  In any event, he was assisted by an Urdu interpreter (which he had indicated was his first language to the court staff at the time he filed the leave application), and said that he had nothing to add other than what I have set out above.

14.  Complaint 2 is also entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision e.g. what are the relevant inquiries and how there was not a “full study” in relation to the facts of the case.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist the 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). Moreover, as I have set out above the Applicant mentioned at the oral hearing, with the assistance of an interpreter, that he did not wish to say anything in addition to the matters set out in the papers.

15.  However, given the seriousness of the issues at hand, I have I have conducted a rigorous examination and anxious scrutiny of the TCAB Decision, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness as well as Complaints 1 to 4.

16.  Having done so, 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 that is sufficient to vitiate the conclusions in the TCAB Decision and that would in any event justify the grant of leave.  In particular:

a.  I see no reasonable argument that the TCAB/NRCPO failed to conduct “relevant inquiries” (which the Applicant has not identified, let alone what the outcome of such might or should have been, and what allegedly relevant information should or might have come to light), neglected or did not properly consider the Applicant’s case, or refused his claim on unfounded (or without any reasonable) grounds. I also do not see any reasonably arguable public law basis to vitiate the decision-maker’s findings that, even on the Applicant’s own set of facts, none of the relevant types of risk were established given relevant issues such as the nature of treatment, state acquiescence, COI, and also the availability of state protection and internal relocation.

b.  Complaints 3 and 4 take the matter no further.  These vague allegations are unsupported by any documentary evidence, including as to what is the “new law”, when it was implemented, and when the alleged occupation of land took place.  I do not see or accept that they are established, let alone that they are relevant to the present application.  In particular and as to the latter, I do not see that the Applicant has established that the TCAB/NRCPO had a positive duty to elicit such materials (if any) of its own volition (cf. Nupur Mst, supra, at §14(5)) or that they support any reasonable argument that the TCAB Decision was biased or formulaic.  If the Applicant intends to claim that there has in fact been a significant change of circumstances or new information relevant to his non‑refoulement claim, that may be relevant to the procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115).  But it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

17.  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.

18.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent, particularly given the lengthy delay in this case.

19.  Finally, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.

Conclusion

20.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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