YOUNAS WASEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1655/2020

[2025] HKCFI 5563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1655 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 Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent.

(2)   The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 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”) apparently dated 13 March 2017.  There was in fact no such decision; instead there was one dated 15 June 2017 (the “TCAB Decision”), a copy of which was exhibited to the Applicant’s affirmation in support (the TCAB hearing date was indeed 13 March 2017), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 8 January 2016 and 21 February 2017.

2.  In these circumstances, I take it that the Applicant intends to challenge the TCAB Decision for the purpose of this application.

3.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not. 

Background

5.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he would be harmed or killed by his paternal uncles if he were to go back because they had a land dispute with the Applicant.  The uncles attacked the Applicant and his brothers some time in 2009 and death threats were allegedly made.  The Applicant said that his uncles had political connections with members of the Legislative Assembly and National Assembly.  The Applicant’s personal background and the relevant facts have been fully set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

6.  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.

7.  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. 

8.  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.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his supporting affirmation.

10.  As can be seen from the TCAB Decision, the TCAB took into account the Applicant’s case [2-3, 17] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [5-6, 20-22, 26-28] and considering Country of Origin information [16], the Applicant’s allegations were insufficient to make out any of the applicable grounds [7-9, 10-13, 18, 23-24, 25, 29-30].  The TCAB also found (as an additional reason) that the Applicant’s evidence to be “dishonest and unreliable” [31-35].  These are conclusions that the TCAB was fully entitled to come to.

11.  I further note that the TCAB held that internal relocation was available on the evidence [18].

12.  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.  I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

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