KHAN AMMAD 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 by naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, by naming only the Director of Immigration as the Putative Interested Party, and by adding “Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated” in front of the words “15 January 2021”; 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 India.  By a Form 86 filed on 27 January 2021 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 27 January 2021 (“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”) dated 15 January 2021 (“the TCAB Decision”)[1].  

2.  The Applicant did not seek an oral hearing of his application, hence I have dealt with such on the papers.  I have amended the Form 86 on my own motion to reflect the identity of the proper Putative Respondent and Putative Interested Party, as well as the nature of the TCAB Decision.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

3.  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 India, he would be harmed or killed by Jhanzaib, a relative and fellow villager;

(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 23 April 2020 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 5 October 2020 at which the Applicant gave oral evidence.  The decision-maker later issued the TCAB Decision dated 15 January 2021, in which she found that the Applicant had not substantiated his claims for non‑refoulement protection on any of the applicable grounds, and confirmed the Director’s Decision.

Legal Principles

4.  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 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  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).

6.  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 (Peter 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

7.  There are no grounds of judicial review specified in the Form 86.  The Applicant claims in the Affirmation that he applies for judicial review as he wants to be here “as my life is in danger back in my country”.  That does not amount to a properly particularised allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

8.  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.

9.  The TCAB/NRCPO outlined the Applicant’s procedural and immigration history, the basis of and underlying facts relied on in relation to the claim, the Applicant’s stance in relation to state protection and internal relocation, and (with reference to relevant principles) the four relevant bases of risk (Paragraphs 1 to 59).  It then summarised the main issues at hand and assessed the Applicant’s claim with regard to the evidence and materials before it, with explicit reference to the high standard of fairness.  The decision-maker concluded that given inconsistencies in the Applicant’s evidence, such was not credible and very little weight was attached to such.  She found that in any case, as regards Torture Risk the Applicant had not been subjected to torture, there was no passive state acquiescence, and on the evidence and COI state protection was available, while internal relocation to Islamabad or Faisalabad was viable and would not be unduly harsh.  BOR 3 Risk was rejected due to the lack of a relevant risk of harm, having had regard to the evidence (including that of past ill‑treatment) and material before the decision-maker.  BOR 2 Risk was rejected due to the lack of risk of capital punishment, and Persecution Risk due to the lack of a Refugee Convention reason (Paragraphs 60 to 162).  Accordingly, the claims for non-refoulement relief were not substantiated and the Director’s Decision was confirmed (Paragraphs 163 to 165).

10.  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.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s credibility and evidence, and in any event those relating to risk of harm, state protection, and internal relocation, all of which are within the province of the decision-maker.  I therefore see no public law basis for vitiating the consequent conclusions as to each of the four claimed bases.  In particular, as to Persecution Risk there is no public law basis for vitiating the conclusion that there was no Refugee Convention reason.  While the decision-maker may have approached BOR 2 Risk on too narrow a basis, that is not in and of itself sufficient to justify the vitiation of, and the grant of leave in relation to, the TCAB Decision.  After all, the same conclusion would have been and would be reached as to BOR 2 Risk in any event, given the other conclusions in the TCAB Decision (in particular, the reasons for and rejection of BOR 3 Risk and the absence of any public law basis to vitiate such, and its findings in relation to internal relocation). It would hence be futile for me to grant leave to apply for judicial review on that ground (See Kulwinder Kaur [2022] HKCA 49 at §§54 59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

11.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

12.  In the circumstances I have ordered 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