ALI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3804/2019

[2025] HKCFI 1481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3804 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 oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 20 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 29 November 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration dated 20 September 2019 refusing the Applicant’s non-refoulement protection claim.  He named the TCAB and “immigration department” as proposed respondents and named TCAB as an interested party.

2.  I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the Director of Immigration as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything further to say he confirmed that there was not.

Background

4.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis of a fear that he will be harmed or even killed by his girlfriend’s father if he is returned.  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.

Discussion

5.  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 10 HKCFAR 676).

6.  In his affirmation filed in support of the Form 86, the Applicant simply stated that he does not agree with the decision of the TCAB and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  As can be seen from the TCAB Decision, the TCAB correctly identified the applicable principles to the four applicable grounds under the USM [6-17] and carefully considered all the evidence presented by the Applicant [18, 21].  The TCAB then arrived at the conclusion that the Applicant failed to make out the risk of harm alleged to substantiate his non-refoulement protection claim.

8.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM and came to the conclusion that none of them was made out [24-46].  The TCAB further concluded that internal relocation was viable and available to the Applicant in any event [47-50].

9.  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.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003804_2019_files/the_Board's_Decision.pdf