HUSSAIN WAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1320/2020

[2025] HKCFI 5226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1320 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 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 26 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 26 June 2020 (“the Affirmation”), the Applicant 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 11 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application. He said he had nothing to add in relation to the matters set out in the papers.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

Background

4.  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 the family members of a deceased individual (“the Deceased”) who had been run over by the Applicant’s vehicle;

(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 of Immigration (“Director”) in a decision dated 20 June 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 23 April 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 11 June 2020, in which it found that the Applicant’s appeal/petition failed on all applicable grounds and confirmed the Director’s Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  As the Form 86 does not identify any grounds of judicial review, there is no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  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 and bearing in mind the need for a high standard of fairness.

10.  The TCAB/NRCPO set out the Applicant’s background, his immigration and procedural history, the conduct of the hearing, the Applicant’s factual case, as well as principles relevant to each of the four types of risk, assessment of the burden and standard of proof, risk of harm, and credibility (Paragraphs 1 to 39).

11.  The decision-maker then outlined his findings, in particular that the Applicant was not a truthful witness and that his account, including of having had a fatal traffic accident and being pursued by the family of the victim, was not credible, and gave reasons for such conclusions, with regard to the evidence. He also found that there was no credible evidence that the Applicant was at any real risk of being harmed or killed by family members of the Deceased, as claimed, and that it was not credible that they had searched for the Applicant and found him in Islamabad and Karachi (Paragraphs 40 to 53). The TCAB/NRCPO clearly hence clearly did not accept such core allegations of fact advanced by the Applicant in support of his non-refoulement claim.

12.  Given such, the TCAB/NRCPO unsurprisingly found that the Applicant had failed to establish any of the four types of risk relied on. It also found that on the evidence, he could suitably relocate to Karachi or Islamabad. Accordingly, the appeal/petition failed and the Director’s Decision was confirmed (Paragraphs 54 to 62).

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 or justify the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, risk of harm, and internal relocation, which are matters primarily within the province of the decision‑making body. Nor is there any public law basis to vitiate the decision‑maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  Given the TCAB Decision and the aforesaid analysis, I do not see that the bare allegation made in the Affirmation that the Applicant cannot go back to his country at the moment as his “life is still in danger in my home country” is relevant to or assists the Applicant’s application.

15.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  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