QURESHI NOMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 176/2020

[2025] HKCFI 2027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 176 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

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 16 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 9 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 16 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.  The Applicant’s personal background, the incidents alleged to show that he would be ill-treated or killed by his half-siblings in Pakistan, and the immigration and procedural history, etc. were set out in the Board’s Decision.  It is not necessary for me to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  The Board’s abbreviations and descriptions are adopted below unless otherwise indicated.

Discussion

3.  First of all, I have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard in view of the seriousness of the issues at hand (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14).

4.  As evident from the Board’s Decision, after considering the totality of the evidence, the Board concluded that the Applicant was not a truthful witness and had fabricated claims regarding the dispute he was allegedly involved in with his half-siblings.  Based on the gaps, inconsistencies, and other issues with the evidence, the Board rejected the Applicant’s claims both individually and cumulatively.  It was found that the Applicant had never been involved in a dispute with his half-siblings regarding his father’s estate.  His half-brothers had never harmed him; they had never asked him to sign over his share of the will.  They had also never asked his sister to sign over her share either.  It was found that the Applicant’s father’s inheritance was distributed in accordance with his wishes at the time of his death in about 2002.  The Applicant was not of any adverse interest to any person in Pakistan; as a result, the Board did not consider that the Applicant faced any real risk of the prescribed forms of harm should he return to Pakistan (see §§107, 118-123 of the Board’s Decision).

5.  It was primarily the Board’s responsibility to assess the evidence, COI materials, risks of harm, state protection, and viability of internal relocation.  The Applicant has failed to demonstrate any error of law, procedural unfairness, or irrationality in the decision of the Board and has not identified any valid grounds for judicial review in this case (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).  Furthermore, the Applicant has merely exhibited a copy of the Board’s Decision in the supporting affirmation, neglecting his duty to make full and frank disclosure of all material facts known to him (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

6.  Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review. The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

7.  In the premises, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success, and therefore, no leave should be granted (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

8.  I accordingly make an order that the Leave Application herein 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