KHAN NAEEM 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, and 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 30 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 30 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision which was exhibited to the Affirmation, and which describes itself as one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”), made on 15 January 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not appear at that scheduled for 20 August 2025.  I have hence dealt with the application on the papers.

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

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 Mr AK and Mr SK, the Creditors, due to his default in repaying his Loan;

(2)  The claim was initially made on 1 July 2010, and was assessed and rejected in relation to the CAT[2] by the Director of (“Director”) in a decision dated 26 June 2013.  The Applicant appealed to the TCAB (constituted by a different member from that which issued the TCAB Decision) which rejected such by a decision dated 25 February 2014;

(3)  However, and in the meantime, on 5 July 2013 the Applicant lodged a second non-refoulment claim in the form of the USM Claim against BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] (i.e. the Petition Grounds).  This was rejected by the Director in a decision dated 11 May 2018 (“USM Decision”);

(4)  The Applicant then filed the NOA against the USM Decision, in relation to which the decision-maker held a hearing on 23 July 2019; and

(5)  The TCAB Decision was issued by the decision-maker on 15 January 2020, who rejected the Applicant’s claim for non-refoulement as being not substantiated on the Petition Grounds of BOR 2 Risk, BOR 3 Risk, and Persecution Risk, and confirmed the USM 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[6] (iii) the merits of the substantive application[7] (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.  The application was filed more than 5 months after the TCAB Decision.  I do not, in the circumstances, see that there is good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review.  This is for the following reasons.

10.  Dealing, firstly, with the merits of the substantive application, the Form 86 and the Affirmation do not identify any grounds of judicial review.  The latter merely alleges that the decision-maker had “disregard my dangerous situation”.  I do not see that such amounts to a properly particularised allegation of any procedural unfairness in relation to, of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application 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.  

12.  The TCAB/NRCPO summarised the background, issues, immigration and procedural history before it moved on to the Applicant’s claims as made in the TCF, the CAT written answers, the SCF, and the NOA (Paragraphs 1 to 16).  This was followed by relevant principles in relation to each of the Petition Grounds (Paragraphs 17 to 24).

13.  The decision-maker then set out his findings and assessment with regard to the information before him and relevant principles, including as to the Applicant’s duty under s. 37ZA Immigration Ordinance (CAP. 115) and the high standard of fairness (Paragraphs 25 to 28).  The decision-maker had regard to what had happened at the hearing and the case of Re Hidayah [2018] HKCA 595, and (i) Declined to find that the Applicant’s claims that he feared harm by reason of his unpaid loan to the Creditors were credible; and (ii) Therefore did not accept that the Applicant’s factual case was plausible.  He also declined to find, on the credible evidence, that the Applicant had established that he faced a real risk of harm in relation to the Petition Grounds from the Creditors if refouled (Paragraphs 12, and 25 to 36).  Since there was on the evidence no real risk that the Applicant would be subjected to the proscribed harm if he were refouled, none of the claims for Persecution Risk, BOR 3 Risk, and BOR 2 Risk were established, the non-refoulement claim was not substantiated, and the USM Decision was confirmed (Paragraphs 37 to 45).

14.  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 and justify the grant of leave.  In particular:

(1)  The decision-maker’s assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm are matters primarily within the province of the decision-making body, and I do not consider that in the circumstances of this case there is any reasonable argument that the claim (particularly in relation to such issues) was not fairly processed.  Firstly, and here, the decision-maker had (at the stage of the hearing at which the Applicant said he did not wish to answer any further questions but wanted to rely on the information in the Bundle) explained to the Applicant that it had queries about the Applicant’s underlying claims and notified him that if he chose not to address such, it was unlikely the USM Decision would be reversed.  I consider, particularly given the stage at which such occurred, that the Applicant was hence given sufficient indication that the decision-maker clearly had doubts about and was likely to (absent further oral evidence from the Applicant) reject as implausible the Applicant’s underlying factual claims (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23-25, explaining Masud Md [2021] HKCA 1449).  It is also apparent that the Applicant appreciated and understood the ramifications of his position and approach.  Secondly, and unlike in Hidayah, supra, the decision-maker made findings as to the credibility and plausibility of the Applicant’s factual case, and that the Applicant had not (on the evidence) established the relevant risk of harm.  In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to such; and

(2)  There is hence, and also, no public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  Secondly, there is undue delay in this case as the leave application was filed more than 2 months out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation has been given to me for the undue delay.

16.  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.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

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

Conclusion

18.  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