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

HCAL 1688/2020

[2025] HKCFI 5418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1688 of 2020

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

Following:

(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 a Form 86 filed on 20 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 July 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 September 2018.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant did not request for an oral hearing of this application. As such, I shall proceed by way of paper disposal.

Background

4.  The Applicant is a national of Pakistan.  He said that he would be harmed or killed by one Malik (who was a member of the National Assembly) if he is to return to Pakistan, because he shot Malik’s brother on the leg on polling day in the 2010 election.  There were subsequent instances where Malik and his supporters took revenge against the Applicant, and the Applicant considered the local police to be corrupt and they sided with Malik.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  This is to be contrasted with the affirmation, where the Applicant has set out 14 grounds of challenge. I pause to note that almost all conceivable grounds under the sun were raised, including irrationality for failing to consider relevant matters including “state acquiescence”, insufficient inquiry into country of origin information, failure to provide reasons, irrationality by incorrectly placing weight, procedural impropriety by applying an incorrect standard of proof, unreasonably rejecting the credibility of the Applicant’s claim, and so on.  I do not consider this “kitchen sink” approach to be helpful, still less when these grounds are only presented as headlines and catchphrases without any substantiation on the bases of the challenges.  I do not intend to deal with all of them one by one (there is a significant overlap among some of the grounds), but rather my focus is on the overall integrity of the TCAB Decision and whether there is any discernible basis upon which the TCAB Decision may realistically be challenged on public law grounds.

9.  There is also a similar problem with the exhibits.  Apart from the TCAB Decision (together with the cover letter of the DOI), the Applicant exhibited a pile of papers (20+ pages) without explaining the relevance of them.  It seems to be an article or a journal explaining the various bases of non-refoulement claims (including some “template” grounds for challenge), but it is wholly unclear how they are relevant to the Applicant’s claim.  I note in particular that there seems to be an organization named “Vision” which has been providing “advice” to the Applicant (and possibly other similar applicants) on how to approach their non-refoulement claims (see e.g. exhibit with an internal page number 35).

10.  As can be seen from the TCAB Decision, the TCAB fully took into account all the evidence available [4-26, 46-50] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [33-45] and considering Country of Origin information [27-28, 32], the Applicant’s allegations were insufficient to make out any of the applicable grounds [51-86].  Specifically, the TCAB found the Applicant’s evidence to be unreliable and incredible [61].

11.  The TCAB also considered that state protection and internal relocation were available to the Applicant [27-32, 68-69].  There were conclusions that the TCAB was fully entitled to reach.

12.  I find that none of the grounds raised by the Applicant in his affirmation to be valid.  In particular, once the TCAB found the Applicant’s case to be incredible (and there was in fact no threat or assault from Malik and his supporters), there was no factual or evidential basis to support the Applicant’s non-refoulement claims [61], whatever fancy labels the Applicant has decided to use to dress up his challenge to the TCAB Decision.  As an example, there could not be any “state acquiescence” applicable to the Applicant’s claim that would warrant the TCAB’s consideration.  There is equally no reason why the TCAB should dwell too much on country of origin information when the threat did not exist in the first place.  Indeed, when the TCAB Decision is properly read and understood, the TCAB gave full reasons for its decision and duly considered all relevant information (including Country of Origin information), so many of the grounds relied on by the Applicant in his affirmation are simply non-starters.

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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