BABAR HUMAYUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

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, and naming only the Director of Immigration as the Putative Interested Party; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Pakistan.  By a Form 86 filed on 10 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 10 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 28 May 2020 (“the TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of his application, and appeared at that scheduled for 4 September 2025.  He said he had nothing to add in relation to his leave application.

3.  I have amended the Form 86 of my own motion to reflect the identities of the proper Putative Respondent and Putative Interested Party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by supporters of the MQM;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 26 September 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 15 November 2019, and at which the Applicant advanced different facts in relation to his claim for non-refoulement.  The decision-maker issued the TCAB Decision on 28 May 2020, in which she found that the Applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds, and confirmed the Director’s Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  The Form 86 merely alleges that the TCAB was “unfair to make decision against… me” and that the Applicant is not satisfied.  As for the Affirmation, that claims that he has “pointed some errors of the erred(sic)” in Paragraphs 54 to 60 of the TCAB[6] but, rather than setting out any properly particularised allegation of lack procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision (including in Paragraphs 54 to 60 thereof), makes the following allegations in relation to the underlying merits of the non-refoulement claim as advanced before the TCAB/NRCPO:

“I have serious issues in karachi and in my village sirka, the most wrost(sic) is in my village the decesed(sic) family will not leave me alive to get revenge from me. The deceased(sic) cousin are very rich and gangs and politicain(sic) involve people(sic). But some villagers are still talking to them to agree the decesed(sic) family to give them money…”

9.  Although the documents do not identify any properly particularised ground of judicial review, given the seriousness of the issues at hand 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, as well as the claims made in the Affirmation.

10.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 7), outlined the Applicant’s claims as originally made to the Director, and detailed what the Applicant claimed at the hearing before the TCAB/NRCPO were the “true circumstances” (Paragraphs 9 to 16).  It summarised relevant documents referred to, the relevant approach to plausibility and credibility, and was prepared to accept the Applicant’s evidence at the hearing that a fight had occurred resulting in the death of a driver, the evidence regarding his and his brothers’ arrests, detention, release, and that after compensation was paid to the driver’s family the police case in relation to the driver’s death was closed and no further criminal charges were pursued against the Applicant (Paragraphs 17 to 23).  However, the decision-maker was not satisfied that the driver or his employer were related to Benazir Bhutto or the Bhutto family, although it accepted both that the Applicant believed this to be the case and that the Applicant feared retribution from the family of the driver or his employer and had moved to his family’s home in Sirka Attock (Paragraphs 24 to 25).

11.  The TCAB/NRCPO then assessed Torture Risk and, given the facts, found that such was not established and that there were no substantial grounds to believe he would be in danger of being subjected to torture as defined in the Immigration Ordinance.  In particular, it found that the Applicant did not face a real risk that he would suffer such harm, that such would be intentionally inflicted, or that it would be so inflicted with the instigation, consent, or acquiescence of a public official or a person acting in an official capacity. Moreover, state protection was available.  BOR2 Risk, BOR 3 Risk, and Persecution Risk were rejected given the lack of any real risk that he would suffer such harm, and as to last of these the TCAB/NRCPO also concluded that no Refugee Convention reason was engaged, and that there was no claim or evidence to suggest he would be denied state protection for any Refugee Convention reason.  Internal relocation was also assessed to be both available and reasonable to Sirka Attock, or to urban areas such as Islamabad or Lahore. The Applicant’s claims for non-refoulement were hence not made out on any of the applicable grounds, and the Director’s Decision was confirmed (Paragraphs 26 to 65).

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s evidence, risk of harm, state protection, and accordingly Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.  Moreover, and in any event, the findings made in relation to internal relocation (which like the aforesaid matters are within the province of the decision‑maker) would inevitably have led to the conclusion that there was no basis for affording the Applicant non-refoulement protection.

13.  Given the findings in and my analysis of the TCAB Decision, and the nature of judicial review proceedings, I do not see that the allegations in the Affirmation relating to the merits of the Applicant’s underlying claim are relevant to or assist the application.

14.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

15.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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