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

HCAL 543/2020

[2025] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 543 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 be amended on the Court’s own motion, naming also the Non-Refoulement Claims Petition Office as the Putative Respondent and adding “Non-Refoulement Claims Petition Office” before the words “Date of Decision”; and

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 7 April 2020 (“Form 86”), which was accompanied by an supporting affirmation also dated and filed on 7 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) made on 19 March 2020. However, the decision made on 19 March 2020 was actually a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) (“the NRCPO Decision”)[1],

2.  Given the above, and also the context set out below, I have therefore amended the Form 86 of my own motion to add the NRCPO as a putative respondent and identify the NRCPO as the party which made the NRCPO Decision in relation to which leave is sought.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim non-refoulement relief, and the immigration and procedural history leading up to the NRCPO Decision, are set out in the latter document (Paragraphs 1 to 33). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement relief in relation to the present proceedings is premised on BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4], and stems from the apparent risk of being harmed or killed by Mohammad Aslam (“Aslam”) and Aslam’s sons, and being arrested by the Pakistani Police if he returned to Pakistan, which apparently stem from incidents relating to land owned by the Petitioner’s father (“the Land”);

b.  Such claims were rejected by a decision of the Director of Immigration (“Director”) dated 31 January 2018 (“Director’s Decision”), and in the NRCPO Decision which was reached after an oral hearing attended by the Applicant on 5 November 2019; and

c.  As observed and recorded in the NRCPO Decision (Paragraph 6), the Applicant had previously made a non-refoulement claim based on the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, which had previously been determined on 30 October 2013, and which claim was finally determined in accordance with s. 37V(2)(a) Immigration Ordinance, Cap. 115 as no appeal had been filed within the statutory time limit.

4.  No grounds for judicial review are set out in the Form 86 or the Affirmation.  The latter merely exhibits the NRCPO Decision, and a certificate of marriage dated 23 March 2018 between the Applicant and a lady who resided in Hong Kong.

5.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. He claimed that he still faced problems in his country, and asked for mercy as the situation in his country was not good. He claimed that the problem he faced was not resolved yet. I asked him about the relevance of the marriage certificate, and he said he had submitted it as his wife had told him to do so. I address these matters below.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

7.  It is trite that judicial review is not 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: see 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.

8.  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] HKCA14, at §23).

Discussion

9.  Here, the Applicant has not identified or set out any grounds of judicial review.  There is hence no allegation of any 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 NRCPO Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The NRCPO Decision begins by setting out the procedural history including how the NRCPO had before it and had regard to the materials referred to in the Director’s decision (including various COI within) (Paragraphs 1 to 8), the Petitioner’s case (Paragraphs 9 to 33), and passages from the COI before it including some on the Pakistani Police, the Pakistani judicial system and its independence, and on internal relocation including on Lahore (which possibility of internal relocation, and city, was also mentioned within the Director’s Decision) (Paragraphs 55-73).

12.  The NRCPO Decision then correctly sets out (at Paragraphs 34 to 47) the relevant law and legal principles relating to the 3 applicable grounds under the USM that were the subject of the decision (BOR3 Risk, BOR2 Risk, and Persecution Risk), and the relevant Principles of Assessment (Paragraphs 48 to 54).

13.  Crucially, at Paragraphs 74 to 83 of the NRCPO Decision the NRCPO only accepted that the Applicant was a national of Pakistan and that his father owned the Land. It rejected his evidence that his family[5] were involved in a dispute over the Land as alleged, and accordingly also his evidence that his family were subjected to harm, arrest and harassment as a consequence. In so doing the NRCPO gave adequate reasons referring to the relevant facts, evidence, and COI material before it.

14.  It was in those circumstances that the NRCPO held, as it was entitled to, that there was no evidence to suggest that the Applicant would be exposed to BOR2 Risk, BOR3 Risk, or Persecution Risk if he were to be refouled to Pakistan, adding also in relation to Persecution Risk that the threat did not appear to be linked to a Convention ground (Paragraphs 84 to 89).

15.  Although the NRCPO did not (given the above) need to do so, it also went on to conclude, with adequate reasons referring to relevant evidence and matters before it, that in any event relevant COI showed that state protection was available, and that internal relocation was possible without undue hardship, for example to Lahore (Paragraphs 90 to 95).

16.  Finally, the NRCPO rejected the Applicant’s claim for the reasons that it had given above (Paragraphs 96 to 98).

17.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the NRCPO Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying his claim, and consequently the risk of harm, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the NRCPO. There is hence no basis to interfere with the NRCPO’s findings of fact on matters which are primarily within its province.

18.  The Applicant’s application for leave is not assisted by his assertions at the oral hearing as to “problems” he would face in Pakistan, or the general situation there. They are vague, bare, and unsubstantiated, Further, given the NRCPO Decision and the aforesaid analysis, I do not see how they are relevant to the issues before me. I hence reject them. I also do not see or accept that the fact of his marriage is relevant to the issues before me.

19.  Given the above, I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

20.  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.

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