RASHID RASHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1439/2020

[2025] HKCFI 5437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1439 of 2020

 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 Intended Respondent, naming only the Director of Immigration as the Putative Interested Party, and adding “/Non Refoulement Claims Petition Office” before the words “on my non-refoulement case”; 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 9 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 9 July 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 14 May 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 identities of the proper Putative Respondent and of the proper Putative Interested Party, as well as the nature of the TCAB Decision.

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 members of LeJ or by members of Taliban;

(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 30 April 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 16 January 2020; and

(4)   The TCAB/NRCPO issued the TCAB Decision on 14 May 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.  The Form 86 does not identify any grounds of judicial review.  The closest the Applicant gets to doing so in the papers is the vague and amorphous allegation in the Affirmation that the TCAB/NRCPO had “disregard[ed] [his] dangerous situation”.  It is unclear whether, how, and why the Applicant alleges any 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, and principles relevant to each of the four types of risk.  It then outlined the Applicant’s factual case, and the principles considered and applied in relation to the burden and standard of proof, assessment of the risk of harm, and credibility (Paragraphs 1 to 46).

11.  The decision-maker then referred to relevant COI, as well as to the Applicant’s evidence, and while he accepted that the Applicant was a member of the Shia sect, assessed and concluded that the Applicant was not a truthful witness and that the following core claims made by the Applicant were not credible, namely (i) That the LeJ or any Taliban organisation had specifically targeted the Applicant (ii) That the LeJ had searched for him and found him in Islamabad or Lahore (iii) His description of either of the attacks on him by members of the LeJ; and (iv) That the LeJ or any Taliban organisation would pose a real risk to the Applicant in the future.  The TCAB/NRCPO also found that the Applicant’s evidence of the manner in which he had been injured (that is, allegedly by the LeJ) could not be relied upon, and that the Applicant would not face any real risk of harm if he were to return to live with his mother in his family home in Pakistan. Such assessment and conclusions were supported by reasons which referred to relevant principles, evidence, and COI (Paragraphs 47 to 85).

12.  Given its findings, the TCAB/NRCPO found that the Applicant had failed to establish each of the relevant types of risk, found that the appeal/petition failed, and confirmed the Director’s Decision (Paragraphs 86 to 94).

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 credibility, evidence, and risk of harm, 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 my aforesaid analysis of the TCAB Decision, and the nature of judicial review proceedings, I do not see that the claim made in the Affirmation is relevant or substantiated.

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