ILYAS JOHN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 144/2020

[2025] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 144 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; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 January 2020 (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 6 January 2020 (the “TCAB Decision”) which affirmed the decision by the Director of Immigration (the “DOI”) dated 28 May 2018.  He named the TCAB as the proposed respondent and named the TCAB and the Immigration Department as interested parties.

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

3.  The Applicant requested for a hearing of this application and attended the same.

Background

4.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he will face a danger to his life if he is returned due to a dispute with an individual of opposing religious and political affiliation, as he is a Christian.  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 (2007) 10 HKCFAR 676).

6.  In his affidavit filed in support of this application, the Applicant complained that the TCAB “disregard my dangerous situation” [sic.] and exhibited 3 pages of “news about the Christian being tortured in Pakistan”.  Otherwise he did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  At the hearing, the Applicant said that he was not yet satisfied with the condition in his country and wanted more time in Hong Kong.  These add nothing.

8.  Dealing first with the new evidence exhibited to the supporting affirmation, they apparently are screen-cap from social media feeds and there is no indication of the poster of these feeds, not to mention any information on reliability of them.  Further, they are all in a foreign language (apparently Urdu) and even together with the photos shown I do not see how any of them shows “Christians being tortured in Pakistan” – as indeed, one of the posts showed a newspaper clipping on cricket news and another shows photos of a demonstration in the UK, and demonstrators carried signage relating to both Christianity and Islam.  I therefore will not admit such new evidence for they do not meet the important influence or the apparent credibility requirements under the Ladd v Marshall principle.

9.  Turning then to the TCAB Decision, the TCAB set out the correct legal principle to all of the three grounds under the USM that the Applicant’s claim relied on [10-23]; had all the materials placed before it, including the Applicant’s extensive testimony at the oral hearing before the TCAB [24-86]; and after careful consideration and applying the legal principles set out concluded that the Applicant’s allegations were not made out and none of the three applicable grounds was made out either [87-99].

10.  Further, the TCAB in any event also concluded that internal relocation was available to the Applicant [100].

11.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  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