HUSSAIN ZAHEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 139/2020

[2025] HKCFI 2120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 139 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 a decision dated 3 January 2020 with the reference number “USM12190/18/6/369/P2361”.  He named a member of the Torture Claims Appeal Board (the “TCAB”) as the proposed respondent and the TCAB as an interested party.

2.  From the papers filed for this application there was a decision dated 3 January 2020 by the TCAB bearing the above reference number (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 20 June 2018 refusing the Applicant’s non-refoulement protection claim.  I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.  I accordingly amended the Form 86 on my own motion, naming the TCAB as the putative respondent and the DOI a putative interested party.

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

Background

5.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that he will be harmed or killed by his uncle with whom he has a land dispute.  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

6.  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).

7.  In his affirmation filed for this application, the Applicant attached a 4-page document raising a number of complaints against the TCAB Decision.

8.  At the hearing he informed me about a medical condition in his head, and that he wanted more time so that he could stay in Hong Kong.  These are not relevant to the issues at hand.

9.  Turning to the complaints raised in the Applicant’s affirmation, the first complaint goes to the COI placed before the TCAB, namely that such information was only gathered from the internet, e.g. from Wikipedia, and “not true” and “not according to the true situation in Pakistan”.

10.  Looking at the TCAB Decision, the COI actually referred to by the TCAB came from reports or studies carried out by the UK Home Office in June 2017 [40], the US Department of State in 2017 [42], as well as from the official websites of Pakistani government departments [43, 45].  There was nothing of the sort of Wikipedia sources that the TCAB had relied on.  This complaint is factually wrong to begin with, not to mention that the Applicant offered, and still offers, no evidence to show how any of the COI is “not true”.  This complaint has no merit.

11.  The second complaint comprises two elements: (a) the TCAB made the decision “without knowing all the background and getting the full information” and (b) it was “impossible” for the Applicant to put his case truly and accurately without legal representation.

12.  As can be seen from the TCAB Decision, all the documents pertaining to the Applicant’s claim were placed before the TCAB, and more to the point, the Applicant was invited to clarify matters but he refused and asked the TCAB to simply consider all documents contained in the hearing bundle [11].  It therefore does not lie in his mouth now to say the TCAB had failed to consider any further background matters or information or that he was hampered in any way in providing or clarifying factual bases of his claim, bearing in mind especially that the Applicant bears the burden of proof in his own claim.  As noted by the TCAB, the Applicant did not adduce evidence for even material aspects of his factual allegations [17].  There is no merit in this complaint in any way.

13.  The rest of the complaints are assertions of how corrupt the various systems are in Pakistan, e.g. the political system, the judiciary, the police etc..  The complaint ends with “there are hundreds and thousands of examples available even over the internet which can support the claim of corrupt system and lack of justice” in Pakistan.

14.  It is ironic how the Applicant himself wants to invoke information available on the internet as long as it supports his claim, but more critically, the Applicant referred to reports and studies allegedly done by Transparency International in 2002, 2010, 2011 and 2013, all not even mentioned by him at the TCAB hearing.  As indeed, there is no evidence adduced even now that these reports in fact do exist.

15.  Further, these alleged reports and studies all pre-date the reports and studies referred to by the TCAB, so if anything these reports would not have been more pertinent even if adduced before the TCAB.

16.  There is therefore no merit in the rest of the complaints either.

17.  The TCAB had in fact considered all the materials that was available before it, including the lack thereof in certain respects [7-14], applied the correct legal principles, including burden and standard of proof and assessment approach, to the materials [16-56], before coming to its conclusions on facts [57-79].

18.  The TCAB then proceed to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles, and concluded that none was made out [81‑102].

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

Conclusion

20.  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