TARIQ MAHMMOD alias TARIQ MEHMOOD alias TARIQ MAHOOD 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:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan.  By a Form 86 filed on 6 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 6 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of:

(1)   A decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 2 March 2017 (“TCAB Decision”) [1], and a decision of the NRCPO made on 19 March 2020 (“the NRCPO Decision”)[2]; and

(2)   Decisions of the Director of Immigration (“Director”) made on 3 June 2015 (“Director’s Decision”) and 24 August 2017 (“Director’s Further Decision”).

2.  The Applicant sought an oral hearing of his application and one was scheduled for 20 August 2025.  However, he did not respond to attempts by court staff to contact him on 15 and 18 August 2025 at the mobile phone number provided.  The Notice of Hearing issued by post[3] notifying him of the hearing was, after the scheduled hearing date, returned undelivered by reason of his having moved.  He has hence failed to discharge his duty to give the court an address to which correspondence or notice can come to his attention in a timely manner (Islam Raja Rais v Director of Immigration, HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439).  In the circumstances I have dealt with his application on the papers.

3.  I will use the abbreviations and definitions from the TCAB Decision and the NRCPO Decision unless otherwise specified herein. 

Background

4.  This is set out in the TCAB Decision, the Director’s Further Decision, and the NRCPO 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 Pakistan, he would be harmed or killed by Shia people as he is a Sunni Muslim and had fought with the Shia people in mid-2006, and as the Pakistani government would attack the people of JEI, of which he was an ordinary member;

(2)   The claim was assessed on the grounds of Torture Risk[4], BOR 3 Risk[5], and Persecution Risk[6] and was rejected by the Director in the Director’s Decision dated 3 June 2015.  The Applicant hence appealed/petitioned to the TCAB/NRCPO, which held an oral hearing and ultimately dismissed the appeal/petition by way of the TCAB Decision dated 2 March 2017;

(3)   The Director by a letter dated 3 April 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[7]. On 11 April 2017 the Applicant provided some further documentation, and said he would provide further evidence within 6 months.  The Director by a letter dated 15 May 2017 required the Applicant to provide, by a deadline of 22 May 2017, information as to the relevance of the documents that he had submitted, and as to the nature and relevance of the documents that he intended to submit in relation to his claim, and stated that if no information were received then the claim would be determined on the basis of all available information without further notice.  As no reply was received in relation to such by the deadline or up to 24 August 2017, the Director made the Director’s Further Decision on the latter date, in which he found that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim;

(4)   On 5 September 2017 the Applicant submitted a petition against the Director’s Further Decision.  The NRCPO was constituted by the same adjudicator who had issued the TCAB Decision.  It issued the NRCPO Decision dated 19 March 2020, in which it was decided that the Petitioner had not succeeded in establishing BOR 2 Risk, the petition was dismissed, and the Director’s Further Decision was confirmed.

Legal Principles

5.  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 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  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).

7.  In order for me to give leave to apply 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 (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).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[8] (iii) the merits of the substantive application[9] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  As to the application for leave in relation to the Director’s Decision and the Director’s Further Decision, once the Applicant had (on each occasion) pursued his appeal to the TCAB/NRCPO each of those decisions was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  The attempt to seek leave in relation to such decisions is hence not reasonably arguable and must be dismissed.

10.  The application was filed more than 3 months after the TCAB Decision, and more than 3 months after the NRCPO Decision.  Indeed it was filed more than 3 years out of time in relation to the TCAB Decision, and over 2 weeks out of time in relation to the NRCPO Decision.  I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

11.  Dealing, firstly, with the merits of his application, the Form 86 does not contain any grounds for judicial review.  The Affirmation exhibits a handwritten document which states, in summary and in translation, that he had respected the institutions and laws (which he said he had never violated) of Hong Kong, claimed that his life was still in danger and was not safe in Pakistan, asked for help and mercy, for the court to safeguard his life, and to be granted safety in Hong Kong.  The Applicant therein also stated that he had already provided all the evidence to the Director and had nothing else which he might provide to the court.  I do not see how such matters amount to any effective grounds of judicial review.  There is hence no 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 or the NRCPO Decision.

12.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision and the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.  Having done so, I do not 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 conclusions in the TCAB Decision or the NRCPO Decision, or that would in any event justify the grant of leave.  In particular:

(1)   As to the TCAB Decision:

(a)   The assessment, reasoning, and findings regarding the risk of harm, internal relocation, and state protection were and are matters primarily within the province of the decision-making body, which set out and considered the relevant material and submissions before it in reaching its decision.  I see no reasonably arguable public law basis to vitiate such; and

(b)   I also see no reasonably arguable public law basis to vitiate the TCAB/NCRPO’s consequent findings that the Applicant had failed to establish any of the three relevant types of risk, and hence his claim for non-refoulement relief on such bases.

(2)   I do not see that there is any reasonably arguable public law basis to vitiate the approach and conclusions in the NRCPO Decision, since in the TCAB Decision it had already been determined (even without recourse to adverse findings as to the Applicant’s credibility) that BOR 3 Risk was not made out, and given the nature and limited contents of the Applicant’s allegations raised in relation to BOR 2 Risk (see Kulwinder Kaur [2022] HKCA 49 at §§58-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

14.  The bare and unsubstantiated allegations made in the exhibit to the Affirmation do not assist the application for leave, given the aforesaid findings in and analysis of the TCAB Decision and the NRCPO Decision, and as judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error.

15.  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.

16.  Secondly, there is undue delay in this case, particularly in relation to the TCAB Decision.  Despite this, there was no request for an extension of time to make the application in the Form 86.  Nor was any explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

17.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

18.  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