WARIS MUHAMMAD 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.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 12 January 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 October 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 26 June 2019.  While both decisions were identified in the Form 86 as the subject of challenge, it is clear that I only need to consider the correctness (in the public law sense) of the TCAB Decision (for it was a review of the underlying DOI decision).

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not. 

Background

4.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed by two men from his village with whom the Applicant had a land dispute.  There was already an incident of attack against the Applicant and his brother.  The Applicant’s personal background and the relevant facts have been fully set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  In an enclosure to the Form 86, the Applicant repeated his factual background, maintained that he continued to be in danger and complained that the case officer did not know the real situation and condition in Pakistan.  He then listed out the grounds of his challenge against the TCAB, broadly as follows:

(1)  Failing to make sufficient inquiries before determination;

(2)  The Applicant was not given a sufficient chance to arrange relevant evidence to present to the TCAB.

9.  Pausing here, in the same enclosure the Applicant also listed out certain challenges against the DOI’s decision.  These matters are irrelevant as the present application is plainly against the TCAB Decision and not against the DOI’s decision.

10.  In the affirmation in support, the Applicant further asserted that the TCAB Decision was “unlawful” because the TCAB failed to take into account “many things and issues”.

11.  As can be seen from the TCAB Decision, the TCAB took into account the Applicant’s case [1-42] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [68-69, 72-74, 78, 81-82] and considering Country of Origin information [63], the Applicant’s allegations were insufficient to make out any of the applicable grounds [53-67, 70-71, 75-77, 79-80, 83-86].  

12.  The TCAB further held that internal relocation was available on the evidence [62, 65, 70, 75, 83].  It was a conclusion that the TCAB was fully entitled to reach.

13.  While the appeal / petition to the TCAB was made late, the TCAB fully considered the circumstances and allowed an extension of time in favour of the Applicant [43-46].

14.  I also note that the TCAB did not conduct an oral hearing before rendering the TCAB Decision, in view of the fact that there was no more further information that the Applicant may provide and he had had ample opportunities to make submissions.  The TCAB properly considered whether a hearing should be held as a matter of procedural fairness [47-52], citing the correct legal principles along the way, and I am unable to detect any error or procedural unfairness. 

15.  As to the grounds advanced by the Applicant in his exhibit to the Form 86 and his supporting affirmation, I find that they are not made out.  The TCAB fully considered all the available evidence before rending its decision.  The Applicant was also provided with fair and appropriate opportunities to present his evidence and arguments.  I am also unable to see how the TCAB Decision may be said to be unlawful.

16.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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