MEHMOOD ASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3765/2019

[2025] HKCFI 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3765 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   Form 86 be amended on my own motion to name only the TCAB as the putative respondent and only the DOI as the putative interested party; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 18 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “Director of Immigration Decision 17/4/19” and “TCAB Decision 5.12.2019” and named the Director of Immigration (the “DOI”) and TCAB as proposed respondents and interested parties.

2.  According to the papers filed for this application, there is a decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 December 2019 (the “TCAB Decision”), which affirmed a decision by the DOI dated 17 April 2018 (the “DOI Decision”) refusing the Applicant’s non-refoulement protection claim.

3.  As such, I 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 did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.  The Applicant is a national of Pakistan.  He sought non-refoulement protection on the basis of a threat to life made by a person of opposing political/religious affiliation, who had kidnapped him for about 6 days and threaten to kill him.  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.

6.  I shall add that at the hearing before the TCAB on 21 October 2019, the Applicant was recorded as stating that he was “not in fear of any harm if he returns to Pakistan.  He does not fear harm from [the opposing political party] or [the person who had kidnapped him].  He said he is not in fear of anything” [40].  That notwithstanding, the TCAB proceeded to analyse and give its findings and conclusions as to the four applicable grounds under the USM.

Discussion

7.  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).

8.  In his affirmation filed in support of the Form 86, the Applicant stated that both the decisions of the DOI and the TCAB failed to meet “international fairness standard” and the “decision authorities did not take into account ground reality”.

9.  As the hearings before TCAB are de novo, the proper subject of challenge, and hence this court’s scrutiny, should be the TCAB Decision, not the DOI Decision.

10.  Looking at the TCAB Decision, what was made clear at that point by the Applicant was that the fear for life he originally had (be it substantiated or not) had ceased to exist.  It was apparently not a mere say-so but rather based on the fact that the political party supported by the Applicant had come to power, both on the national level and in the province of the Applicant [40]. On this factual basis alone the present application should be dismissed for being entirely academic.

11.  In any event, I see no issue of procedural fairness in the present case: the Applicant was afforded every reasonable opportunity to establish his claim, both by way of written representation, attending an interview and a full oral hearing before the TCAB with the assistance of a suitable interpreter [3-6].

12.  There is also no valid ground to complain that the TCAB had failed to take into account “ground reality” or for that matter any relevant considerations.  As indeed, the TCAB took the care to conduct a full oral hearing and in fact continued to analyse all four relevant grounds under the USM [41-67] applying relevant legal principles in each respect [11-27].

13.  All in all, even leaving aside the academic nature of this application as identified above, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

14.  For the above reasons I 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