RAZA ALI 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.  The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party; and

2.  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 30 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 30 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision which was exhibited to the Affirmation, and which describes itself as one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”), made on 23 June 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application on 20 August 2025.  He clarified that in his Affirmation he had simply meant to say that he was not safe in Pakistan, and there was a problem, which was why he had come to Hong Kong.  He said that he did not understand, and agreed that I should ignore, the references therein to “Pakistan very advance. Internet technologi internett media. Around country.”

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

Background

4.  This is set out in the TCAB 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 Uncle SA due to a dispute over the Land;

(2)  The claim was initially made 22 April 2009, and was assessed and rejected in relation to the CAT[2] by the Director of (“Director”) in a decision dated 11 October 2013.  The Applicant did not appeal against that decision to the TCAB;

(3)  However, on 17 October 2013 the Applicant lodged a second non-refoulment claim in the form of the USM Claim against BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] (i.e. the Petition Grounds).  This was rejected by the Director in the USM decision dated 22 October 2018;

(4)  The Applicant then filed the NOA against the USM Decision, in relation to which the decision-maker held a hearing on 16 October 2019; and

(5)  The TCAB Decision was issued by the decision-maker on 23 June 2020, who rejected the Applicant’s claim for non-refoulement as being not substantiated on the Petition Grounds of BOR 2 Risk, BOR 3 Risk, and Persecution Risk, and confirmed the USM Decision.

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 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).

Discussion

8.  As the Form 86 does not identify any grounds of judicial review, there is no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

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

10.  The TCAB/NRCPO summarised the background, issues, immigration and procedural history, and the position before the decision-maker up to and at the hearing (Paragraphs 1 to 13) before it moved on to the Applicant’s claims as made in the TCF, at the CAT Interview, the SCF, at the USM Interview, and in the NOA (Paragraphs 14 to 16).  This was followed by relevant principles in relation to each of the Petition Grounds (Paragraphs 17 to 24).

11.  The decision-maker then set out his findings and assessment with regard to the information before him  and relevant principles, including as to the Applicant’s duty under s. 37ZA Immigration Ordinance (CAP. 115) and the high standard of fairness (Paragraphs 25 to 28).  He had regard to what had happened at the hearing, the case of Re Hidayah [2018] HKCA 595,  and (i) Declined to find that the Applicant’s claims that he feared harm by reason of his claimed land dispute with Uncle SA were credible; and (ii) Therefore did not accept that the Applicant’s factual case was plausible.  He also declined to find, on the credible evidence, that the Applicant had established that he faced a real risk of harm under the Petition Grounds from Uncle SA or men associated with Uncle SA if he were refouled (Paragraphs 12, and 29 to 40).  Since there was on the evidence no real risk that the Applicant would be subject to the proscribed harm if he were refouled, none of the claims for Persecution Risk, Torture Risk, BOR 3 Risk, and BOR 2 Risk were established, the non‑refoulement claim was not substantiated, and the USM Decision was confirmed (Paragraphs 41 to 49).

12.  I do not, from my examination and scrutiny, 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 TCAB Decision and justify the grant of leave.  In particular:

(1)  The TCAB/NRCPO’s assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm are matters primarily within the province of the decision-making body and I do not consider that in the circumstances of this case there is any reasonable argument that the claim (particularly in relation to such issues) was not fairly processed.  Firstly, and here, the TCAB/NRCPO had explained to the Applicant that it had queries about the Applicant’s underlying claims and notified him that if he chose not to address such, it was unlikely the USM Decision would be reversed.  Hence, I consider that sufficient indication was given to the Applicant that the decision-maker clearly had doubts about and was likely to (absent oral evidence from the Applicant) reject as implausible the Applicant’s underlying factual claims (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23‑25, explaining Masud Md [2021] HKCA 1449).  It is also apparent that the Applicant appreciated and understood the ramifications of his position and approach.  Secondly, and unlike in Hidayah, supra, the decision-maker made findings as to the credibility and plausibility of the Applicant’s factual case, and that the Applicant had not (on the evidence) established the relevant risk of harm.  In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to such; and

(2)  There is hence, and also, no public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

13.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

14.  In the circumstances, I have made the orders above, including 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