NAWAZ AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 568/2020

[2025] HKCFI 3424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 568 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 from the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent;

2.  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 dated and filed on 8 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 8 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 20 March 2020 (“the TCAB Decision”)[1]. The Affirmation exhibited only the TCAB Decision and unless otherwise stated herein I shall adopt the abbreviations and descriptions used within the latter.

2.  The Applicant sought an oral hearing of his application. He appeared at the hearing and said he had nothing to add.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim for

(1)  The Applicant’s claim for non-refoulement relief, stems from a fear that he will be harmed or killed by his neighbour named Banaras (“Banaras”), owing to a dispute relating to land owned by the Applicant’s father in his home village (“Land”);

(2)  His claim was assessed by the Director of Immigration (“the Director”), who in a decision dated 13 July 2018 (“Director’s Decision”)[2] rejected such as not being substantiated on the basis of Torture Risk[3], Persecution Risk[4], BOR 3 Risk[5], and BOR 2 Risk[6];

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 24 July 2018; and

(4)  The TCAB/NRCPO held an oral hearing on 23 December 2019. The Applicant attended the oral hearing and confirmed the truth and correctness of all the evidence in the Hearing Bundle, which included his Non-Refoulement Claim Form. He also gave evidence to the TCAB/NRCPO on various salient topics (see for example Paragraphs 10, 30, 31, 41, 44).

4.  The TCAB/NRCPO subsequently handed down the TCAB Decision.

Relevant parties and decisions in relation to which leave is sought

5.  The Affirmation claims it is made in relation for leave to judicial review “against the the Adjudicator… who refuse my Appeal/petition, as well the [Director] who reject my torture claim which made under [the Immigration Ordinance] Risk of Torture “CIDTP”” and also makes some complaints against both the Adjudicator and the Director (e.g. at Complaint 7 as defined below). However, in the Form 86 the Applicant named the relevant member/adjudicator of the TCAB/NRCPO as the only putative respondent, only sought relief in relation to the TCAB Decision, and named the Director as the only putative interested party. I hence did and do not understand the Applicant to be seeking leave to commence a judicial review of the Director’s Decision. If and insofar as he apparently seeks such leave, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, the lack of exceptional circumstances justifying such an application, and my findings below (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent.

Legal Principles

7.  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).

8.  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).

9.  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

10.  The grounds for the application for leave as apparently raised in the Form 86 are that “the Respondent was in breach of procedural fairness in the following parts”:

(1)  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”. (Ground 1)

(2)  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”. (Ground 2)

(3)  “… the Respondent’s decisions to refuse the Applicant’s appeal on (sic) were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness” (Ground 3); and

(4)  “… the Respondent failed to meet the greater care and duty owed to a

self-represented claimant” (Ground 4).

11.  The Form 86 also says that the application “also includes a judicial review of the Adjudicator’s decision of the Applicant’s oral hearing of the Appeal/Petition.” As this is repeated in the Affirmation, I will address this in relation to Complaint 1 below.

12.  The Affirmation contains the following allegations:

(1)  That the Applicant “also includes a judicial review of the Adjudicator’s decision of my oral hearing of the Appeal/Petition”; (Complaint 1)

(2)  The Applicant lodged a claim for non-refoulement protection on 10 November 2015, which was transferred into the USM “and it was refused after almost 3 years on 13 of July 2018 which is a substantial delay”; (Complaint 2)

(3)  The Applicant was notified of the decision by letter on 9 April 2020, and not by phone as he had requested; (Complaint 3)

(4)  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to my country of origin”; (Complaint 4)

(5)  It was unfair for a decision to be made on BOR 2 Risk “without even being screened by the Immigration Department. How is this possible for any claim goes to Appeal section directly without even screened or verify by the Immigration Department first?” (Complaint 5)

(6)  “Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.” (Complaint 6)

(7)  That the Director and the Adjudicator reached the wrong decision as they rejected his claim for non-refoulement relief “without any proper inquiry and without carefully understanding [the Applicant’s] situation”, which is followed by a suggestion that a fair understanding of his claim requires that “my immigration officers and the Adjudicator are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 7) and

(8)  Complaints at Paragraphs 10 to 12 of the Affirmation that, essentially, the wrong decision was reached on the merits. (Complaint 8)

13.  Grounds 1 to 4 are the only grounds mentioned in the Form 86, but are entirely inadequate, being merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.

14.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, 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. Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that would vitiate the TCAB Decision, even taking into account all of Grounds 1 to 4 and Complaints 1 to 8. Hence there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

15.  The TCAB Decision starts by setting out the Applicant’s procedural and immigration history, including the handling and result of his claims for non-refoulement relief, and his case with regard to the contents of the Applicant’s Non-Refoulement Claim Form (“NCF”) which was included in the Hearing Bundle. It goes on to outline the conduct of the hearing before the TCAB/NRCPO, including the Applicant’s confirmation of the truth and correctness of the evidence contained in the Bundle, and that the only fear he had was from Banaras and not from the state, police, or any other third party (Paragraphs 1 to 10).

16.  The TCAB/NRCPO then set out its approach in relation to the evidence and the application in general, including on its approach as to internal and external consistency, assessing credibility, the burden of proof, hearsay evidence, the standard of risk, harm alleged by non-state actors, COI, and the process of determining claims (Paragraphs 11 to 28).

17.  The Applicant’s claim was then evaluated in some detail on topics salient to the claim, with regard to the evidence and with reference to relevant COI. Findings were made and set out by the TCAB/NRCPO, with reasons given and having regard to the evidence and COI before the decision-maker. Regard was had to the relevant time for determination and to the principles and approach to be taken as to the risk posed by non-state actors. Notably, the TCAB/NRCPO concluded that on the evidence before it the threats and fear from Banaras were purely personal and private, Banaras did not have a real intention to severely harm or kill the Applicant, Banaras did not have resources to track and trace the Applicant nationwide, and that on the facts, there was a low future risk of harm upon the Applicant being returned to Pakistan, with no substantial grounds to show a foreseeable and real risk of harm. It also made findings on various relevant issues including Banaras’ alleged political connections, state involvement, state acquiescence, the availability of state protection, and the alleged ill-treatment, suffering, and injuries allegedly suffered by the Applicant (Paragraphs 29 to 81).

18.  The TCAB/NRCPO then held that none of Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk were established. It gave reasons for doing so, referring inter alia to its earlier findings of fact and observations (Paragraphs 82 to 106). Accordingly, it held that the Applicant’s claim for non-refoulement protection on those grounds failed, and confirmed the Director’s Decision (Paragraphs 107 to 111).

19.  Having regard to the above, and firstly, I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1 and 4, even if such are considered alongside the Grounds mentioned in the Form 86. Here, an oral hearing was held at which salient matters were canvassed with the Applicant, pursuant to which the decision-maker drew conclusions based on the relevant evidence and COI before it, and gave adequate reasons for doing so. The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay or outdated, let alone how such have allegedly resulted in a reasonably arguable public law error in relation to the conduct of the oral hearing and the findings pursuant thereto as set out in the TCAB Decision. Nor do I see that any such issues arise in this case.

20.  Moreover, and for reasons below, I do not see that the Applicant’s other Complaints and Grounds establish any reasonably arguable error of public law which would entail him to rely on Complaint 1, whether in relation to the conduct of the oral hearing, or the conclusions reached in the TCAB Decision.

21.  As to Complaint 2, I do not see that there has been substantial delay in processing the claim given that there are many pending claims for non-refoulement protection and the Director has had to deal with a large number of cases with limited resources. Further and in any event, I do not see that the length of time taken by the Director to process the Applicant’s claims gives rise to any reasonably arguable case that there has been a public law error (including in relation to Grounds 1 to 4) which vitiates the TCAB Decision. A fortiori when the Applicant has not identified any unfairness or prejudice.

22.  Nor do the facts within Complaint 3 (even if accepted as true) raise any reasonably arguable ground for judicial review. There is no legal basis on which the Applicant was entitled to be informed by telephone of the outcome of his petition. There is also no public law error arising from the Applicant being served by post with the TCAB Decision, given the provisions of s. 37ZV Immigration Ordinance (CAP. 115) and Paragraph 22.5 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme in force at the time. In any event, the Applicant filed his Form 86 and Affirmation within the 3-month deadline.

23.  Complaint 5 is devoid of merit as the issue of BOR 2 Risk was clearly raised and assessed by the Director in the Director’s Decision, pursuant to which the Applicant petitioned to the TCAB/NRCPO. I also do not see that it is reasonably arguable that such approach is to be criticised on any public law grounds, let alone to an extent so as to vitiate the TCAB Decision.

24.  As for Complaint 6, the Applicant has not provided specifics or particulars of such alleged “many more unacceptable and unexplainable grounds” (including whether and why such are public law grounds) on which he apparently relies. There is hence no complaint which I can properly evaluate. In any event, for reasons above and below, I see no reasonably arguable case that there are public law errors sufficient to vitiate the TCAB Decision.

25.  Complaint 7 also does not raise any arguable ground (including in the nature of the Grounds) of judicial review, as there is no legal or legislative basis to require the Director or the TCAB/NRCPO to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and the Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

26.  Finally, Complaint 8 does not raise any reasonably arguable ground of judicial review. This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh in the absence of any legal error, of which I have found none (see the authorities cited in Paragraph 7 above).

Conclusion

27.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review be dismissed.

28.  For completeness, I also dismiss the applications made in the Form 86 for an extension of time, continuation of anonymity or sealing orders which the Applicant claims were made at the commencement of these proceedings, and for costs. I do so as there is no need for an extension of time to be made, there were no anonymity or sealing orders made at the commencement of these proceedings (and there are no grounds put before me for such an application), and as there is no basis on which the Applicant should be awarded costs.

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