IQBAL NOUMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 190/2020

[2025] HKCFI 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 190 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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

2.  Leave to the applicant to withdraw the Leave Application; and

3.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 17 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office ("Board") dated 13 January 2020 (" Board's Decision") dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 23 January 2019 (" Director's Decision") rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director as proposed respondent(s) and the Board as the interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of Pakistan and a Sunni Islam. He arrived in Hong Kong on 8 October 2018 illegally via Mainland China. On 18 October 2018, the applicant was arrested by police, and was later referred to the Immigration Department. On 6 December 2018, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by a Shia Muslim gangster who had also falsely accused the applicant of having insulted Shia Islam. Hence, the applicant also had a fear that police would arrest him for suspicion of blasphemy against Shia Islam if he were refouled.

5.  The Director decided against the applicant’s claim on all applicable grounds. Having regard to the past events, the Director did not accept that the ill-treatments the gangster and his people had inflicted on the applicant in the past had attained a minimum level of severity. After having considered the country of original information of Pakistan (“COI”), the Director found that state protection and the option of relocation were reasonably available.

6.  On 15 November 2019, the applicant attended a hearing before the Board. The Board found that there were numerous significant inconsistencies in the applicant’s evidence and his claims lacked of credibility. The Board did not accept that the applicant’s fear of returning to Pakistan for the reasons he had claimed or for any other reason, The Board concluded that the applicant would not be at risk of any harm if he returned to Pakistan. The Board found that the applicant had fabricated his claims and that he failed to establish his case.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

8.  The applicant has not put forward any proposed grounds of appeal in his either the Form 86 or his supporting affirmation. The applicant has failed to identify any arguable error of law by Board, any relevant matter that the Board had failed to consider or any other reason why the dismissal of the appeal was wrong.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

11.  On 5 December 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that he wanted to go back to his home country.

12.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

13.  The Form 86 is amended on the court’s own motion.

14.  Leave to the applicant to withdraw the Leave Application.

15.  The Leave Application 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