GHULAM NAVEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 565/2020

[2025] HKCFI 3916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 565 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 from the Applicant in open court;

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;

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 a Form 86 filed on 8 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 8 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision exhibited to the affirmation, which is dated 3 January 2020 and says it is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“the 2020 TCAB Decision”)[1]. Unless otherwise specified herein, I have adopted the abbreviations and descriptions used in the 2020 TCAB Decision.

2.  The Applicant sought an oral hearing of his application.  He appeared at the hearing.  He said that he had nothing to add beyond what he had said in the papers, and that he had nothing to say in relation to the delay in making his leave application.

3.  I have amended the Form 86 of my own motion in order to reflect the contents of the 2020 TCAB Decision.

Background

4.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the 2020 TCAB Decision, are set out in the latter and in a prior decision of the TCAB dated 16 October 2013 (“2013 TCAB Decision”)[2]. I will not repeat them but, in essence:

(1)  The Applicant fears he will be harmed or killed by some developers who had wanted to buy some land (“the Land”) owned by the Applicant’s father;

(2)  The claim was assessed on the grounds of Torture Risk[3] and was rejected by the Director of Immigration (“Director”) in a decision dated 31 May 2013, and subsequently by the TCAB in the 2013 TCAB Decision.　 It is not apparent that the Applicant sought any further relief in relation to the 2013 TCAB Decision;

(3)  The Applicant then advanced a claim for non-refoulement relief on the basis of BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6].　 That claim was assessed on those grounds and was rejected by the Director in a decision dated 3 August 2018 (“Director’s Decision”)

(4)  The Applicant filed a Notice of Appeal/Petition against the Director’s Decision, and the decision-maker held a hearing in relation to the Applicant’s non-refoulement claims on 24 September 2019; and

(5)  The 2020 TCAB Decision as handed down 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). 

8.  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:

(1)  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;

(2)  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;

(3)  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

(4)  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

9.  Dealing firstly with the merits of the substantive application, the grounds apparently raised in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”. (Ground 1)

(2)  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”. (Ground 2)

(3)  “…the Respondent’s decisions to refuse the Applicant’s appeal on (sic) were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness” (Ground 3); and

(4)  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant” (Ground 4).

10.  The Form 86 also says that the application “also includes a judicial review of the Adjudicator’s decision of the Applicant’s oral hearing of the Appeal/Petition.” As this is repeated in the Affirmation, I will address this in relation to Complaint 1 below.

11.  The Affirmation contains the following allegations:

(1)  That the Applicant “also includes a judicial review of the Adjudicator’s decision of my oral hearing of the Appeal/Petition”; (Complaint 1)

(2)  The Applicant lodged a claim for non-refoulement protection on 13 June 2013, which was transferred into the USM “and it was refused after almost 5 years on 03 August 2018 which is a substantial delay”; (Complaint 2)

(3)  The Applicant was notified of the decision by letter which he received on 10 March 2020, and not by phone as he had requested; (Complaint 3)

(4)  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay.　 They have also relied on some cases which are fairly outdated considering the dramatic changes.  The lack of credible source of information has resulted in them making groundless speculations that it is safe for me to return back to my country of origin”; (Complaint 4)

(5)  It was unfair for a decision to be made on BOR 2 Risk “without even being screened by the Immigration Department.  How is this possible for any claim goes to Appeal section directly without even screened or verify by the Immigration Department first?” (Complaint 5)

(6)  “Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.” (Complaint 6)

(7)  That he believes the Director and the Adjudicator rejected his claim for non-refoulement relief “without any proper inquiry and without carefully understanding [the Applicant’s] situation”, which is followed by a suggestion that a fair understanding of his claim requires that “my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 7) and

(8)  Complaints that the wrong decision was reached on the merits[9]. (Complaint 8)

12.  Grounds 1 to 4 are the only grounds mentioned in the Form 86, but are merely 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 2020 TCAB Decision.  They are hence entirely inadequate as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16). Furthermore, and as will be explained below, Complaints 1, 4, 6 and 8 also fall foul of such principles.

13.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have considered the 2020 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.  Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the 2020 TCAB Decision, even taking into account all of Grounds 1 to 4 and Complaints 1 to 8. 　　 　　　Hence there is 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.

14.  The 2020 TCAB Decision set out the applicant’s immigration history and the procedural history and outline of the Applicant’s claim before it, his claim as advanced at the hearing, along with the Director’s case and relevant legal principles relating to the issues at hand (Paragraphs 1 to 16). 　The decision-maker then moved on to consider the claim, finding for reasons given that the Applicant did not face a real risk of any form of harm upon being returned to Pakistan, and that in any case and even if he were wrong in so finding, that there were safe and reasonable internal relocation alternatives available to the Applicant (Paragraphs 17 to 27).　 The decision-maker then held that Persecution Risk, BOR 3 Risk, and BOR 2 Risk had not been established, held that the appeal failed, and confirmed the Director’s Decision (Paragraphs 28 to 40).

15.  Having regard to the above, and firstly, I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1 and 4, even if such are considered alongside the similarly unparticularised Grounds mentioned in the Form 86. 　Here, an oral hearing was held at which salient matters were canvassed with the Applicant, pursuant to which the decision-maker drew conclusions based on (and giving reasons with reference to) the relevant evidence before it.  The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay or outdated, let alone how such have allegedly resulted in a reasonably arguable public law error in relation to the conduct of the oral hearing and the findings pursuant thereto, that would vitiate the 2020 TCAB Decision. 　Indeed, the decision-maker even found at Paragraph 17 that the Applicant’s claim was consistent with the COI.

16.  Moreover, and for reasons below, I do not see that the Applicant’s other Complaints and Grounds establish any reasonably arguable error of public law which would entail him to rely on Complaint 1, whether in relation to the conduct of the oral hearing, or the conclusions reached in the 2020 TCAB Decision.

17.  As to Complaint 2, I do not see that there has been substantial delay in processing the claim given that there are many pending claims for non-refoulement protection and the Director has had to deal with a large number of cases with limited resources.  In any case, I do not see how the length of time taken by the Director in processing the Applicant’s claim as based on Persecution Risk, BOR 3 Risk, and BOR 2 Risk gives rise to any reasonably arguable case that there has been a public law error (including in relation to Grounds 1 to 4) which vitiates the NRCPO BOR 2 Decision.

18.  Nor do the facts within Complaint 3 (even if accepted as true) raise any reasonably arguable ground for judicial review.　 There is no legal basis on which the Applicant was entitled to be informed by telephone of the outcome of his petition. 　There is also no public law error arising from the Applicant being served by post with the 2020 TCAB Decision, given the provisions of s. 37ZV Immigration Ordinance (CAP. 115) and Paragraph 22.5 of The Practice and Procedural Guide of the Administrative Non‑Refoulement Claims Petition Scheme in force at the time.

19.  Complaint 5 is devoid of merit as the issue of BOR 2 Risk was clearly raised and assessed by the Director in the Director’s Decision, pursuant to which the Applicant filed his Notice of Appeal/Petition. 　I also do not see that it is reasonably arguable that such approach is to be criticised on any public law grounds, let alone to an extent so as to vitiate the 2020 TCAB Decision.

20.  As for Complaint 6, the Applicant has not provided specifics or particulars of such alleged “many more unacceptable and unexplainable grounds” (including whether and why such are public law grounds) on which he apparently relies.  This hence does not amount to a properly pleaded ground of judicial review which I can evaluate. 　In any event, the conclusions of fact in the 2020 TCAB Decision were open to the decision-maker based on the evidence he received and for the reasons he gave.  Those in relation to internal relocation, in particular, are enough to establish that there is no basis for vitiating the conclusions that the Applicant’s appeal/petition should be rejected, and the Director’s Decision be confirmed, and hence no basis for leave to be granted.

21.  Complaint 7 also does not raise any arguable ground (including in the nature of the Grounds) of judicial review, as there is no legal or legislative basis to require the Director or the TCAB/NRCPO to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. 　While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and the Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

22.  Finally, Complaint 8 does not raise any reasonably arguable ground of judicial review. 　This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh.

23.  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.

24.  Secondly, and in any event, there is undue delay in this case as the leave application was filed 5 days out of time[10]. 　Despite this, there is neither a request for an extension of time to make the application in the Form 86, nor any explanation for the undue delay.　 In particular, while the Affirmation makes the bare and unsupported allegation that the Applicant only received the 2020 TCAB Decision on 10 March 2020, it does not even suggest that this was the cause of any delay, or advance any reason for the delay.　 Nor did the Applicant have anything to say at the oral hearing in relation to the issue of delay.

25.  Thirdly, 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.  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. 

26.  In the circumstances, I see no good reason to extend time for leave to apply for judicial review, and I do not consider that I should grant such an extension.  I hence refuse to grant such an extension and to grant leave to apply for judicial review. 

Conclusion

27.  In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out above.

28.  For completeness, I also refuse to make the orders sought in the Form 86 for continuation of anonymity or sealing orders which the Applicant claims were made at the commencement of these proceedings, and for costs.  I do so as there were no anonymity or sealing orders made at the commencement of these proceedings (and there are no grounds put before me for such an application), and as there is no basis on which the Applicant should be awarded costs.

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