ALAM SARFARAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3625/2019

[2025] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3625 of 2019

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;

1.   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 5 December 2019, 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 3 December 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 13 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the USM.

2.  In Form 86, the Applicant mistakenly referred the Board also as the proposed interested party, and I have amended it on my own motion, naming the Director as the proposed interested party instead.

Background

3.  The Applicant’s personal background, the facts presented by him in support of his non-refoulement claim that he would be killed in India, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise indicated, I shall adopt the Board’s abbreviations and descriptions herein. 

Discussion

4.  The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A.  The Applicant’s intended challenge of the Board’s Decision is obviously not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and leave should be refused.    

5.  In the present case, the Applicant has failed to identify his grounds of judicial review in Form 86 as required: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

6.  The Applicant has also breached his duty to make full and frank disclosure of all material facts known to him and potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  It is utterly inadequate for him to only exhibit copies of the Board’s Decision and the Hearing Bundle placed before the Board in his supporting affirmation in the hope that the Court may consider the matter afresh in the absence of any legal error.  As has been repeatedly emphasized, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Applicant has completely failed to meet the required standard for providing the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be properly performed.  The fact that he acts in person does not relieve him of the relevant duty nor provide answer for his non-compliance.

7.  I remind myself of the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  After considering the facts identified by the Applicant, the Board assessed his credibility and made findings based on the evidence available (§§3-23, 26-32, 40-49), and also applying the relevant law and legal principles relating to the issues and the Grounds.

8.  As can be seen from the Board’s Decision, the Board had “great reservations” about the Rape, the Assault and the threats alleged by the Applicant to support his non-refoulement claim.  The Board was “[the] most disturbed” by the “glaring discrepancies between the Information and [the Applicant’s] Testimony”, which led it to conclude that the Applicant was “incredible” and to refuse to accept his case.  The Board’s discussion and consideration of the different grounds under the USM were set out in inter alia the following paragraphs in the Board’s Decision: (i) Torture Risk (§§50-53); (ii) BOR 2 Risk (§§70-72); (iii) BOR 3 Risk (§§54-65); and (iv) Persecution Risk (§§66-69).

9.  The Applicant is unable to show any errors of law committed by the Board or that there was any procedural unfairness or irrationality in the Board’s Decision.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  The Court will not usurp the role of the Board or  intervene by way of judicial review unless there are sufficient public law errors or grounds: 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.

Conclusion

10.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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