HUSSAIN ABRAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 134/2020

[2025] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 134 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 the Applicant being absent in open court;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (the “DOI”) dated 21 March 2018 and the “decision of the Adjudicator” dated 20 December 2019.  He named the DOI and “an Adjudicator of Non-Refoulement Claims petition Office appointed to determine the applicant’s petition” as proposed respondents and the DOI and the Torture Claims Appeal Board (the “TCAB”) as interested parties.

2.  From the papers filed for this application, there was a decision dated 20 December 2019 made by the TCAB (the “TCAB Decision”) which affirmed the decision dated 21 March 2019 by the DOI refusing the Applicant’s non-refoulement protection claim.  I take it that the Applicant is seeking judicial review of the TCAB Decision as the appeal against the DOI’s decision before the TCAB was a de novo hearing.

3.  I accordingly amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application but he was absent at the hearing.  I shall deal with this application on paper.

Background

5.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he will be harmed or killed by people of opposing religious affiliation if he is returned.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case 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.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant alleged that the “decisions” were unreasonable, the Director failed to consider all the matters raised, and that the “decisions” failed to take into account many things and “assues” [sic.]. In his Form 86, the Applicant attached a set of complaints against “the Director’s Decision”, however they were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

8.  As indicated above, it is the TCAB Decision that is susceptible to judicial review and I will only consider the TCAB Decision.

9.  Looking at the TCAB Decision, Applicant’s case and evidence were all placed before the TCAB, including the Applicant’s oral testimony before the TCAB [8-22, 23-25] and relevant COI [41-50].  The Applicant was even given an opportunity to provide further evidence, but he in the end did not provide any further information or documents [26].  After careful consideration [51-71], the TCAB came to the conclusions that the Applicant’s allegations were not sufficiently made out [72-78].

10.  The TCAB further analysed each of the four applicable grounds under the USM, applying in each instance the correct legal principles [27-40], and concluded that in the circumstances none of them was made out [80-85].  Further, the TCAB concluded that internal relocation was available to the Applicant in any event [86-89].

11.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, whether as alleged by the Applicant or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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