ZAMAN QAMAR v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 666/2020

[2025] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 666 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 be amended on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and identifying the decision of the Non-Refoulement Claims Petition Office dated 6 April 2020 as the Judgment, order, decision or other proceeding in respect of which relief is sought; and

2.  Application for 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 16 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision dated 6 April 2020.

2.  There is a decision relating to the Applicant dated 6 April 2020 of the Non‑Refoulement Claims Petition Office (“NRCPO”) (“NRCPO Decision”)[1]. However, no documents were exhibited to the Applicant’s supporting affirmation also dated and filed on 16 April 2020 (“the Affirmation”).

3.  At the oral hearing of the application, the Applicant confirmed that leave was sought to judicially review the NRCPO Decision. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

4.  I have amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought.

Background

5.  The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, and the immigration and procedural history leading up to the NRCPO Decision, are set out in the latter decision. I will not repeat them but, in essence:

a.  After his torture claim had been rejected on 13 November 2013, the Applicant made a further non-refoulement claim on 16 November 2013 the grounds of BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4]. The basis of his claims was that he would be harmed or killed by one Ikram Khan (“Ikram”);

b.  The claim was rejected by the Director of Immigration (“Director”) in a decision dated 21 December 2018 (“Director’s Decision”); and

c.  The Applicant appealed/petitioned to the NRCPO, which held a hearing on 19 December 2019 (“NRCPO Hearing”).

6.  The NRPCO Decision was subsequently handed down, in which the NRCPO rejected his claim for non-refoulement on the three claimed bases and confirmed the Director’s Decision.

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.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The body of the latter merely states that he wants to apply for judicial review as “immigration make decision for me I’m not satisfied I want to stay in Hong Kong because my life still dangerous in my home country Pakistan. Please let me stay Hong Kong until I Finish my Problems.” I will deal with such below.

11.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision. However, 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.

12.  The NRCPO began by setting out the Applicant’s procedural and immigration history (Paragraphs 1 to 12) and his claims as made in the Torture Claim form and the SCF and in interviews (Paragraphs 13 to 30) before summarising the conclusions reached in the Director’s Decision (Paragraphs 31 to 35) and the documents including COI considered by the NRCPO (Paragraph 36).

13.  The decision-maker then identified, with reference to relevant principles, the 3 grounds for non-refoulement relief, the approach taken in relation to credibility, and the standard and burden of proof (Paragraphs 37 to 52). This was followed by an extensive outline of the evidence given and discussions at the NRCPO Hearing (Paragraphs 53 to 76).

14.  The NRCPO then assessed the credibility of the Applicant’s claims and evidence. It concluded that he was not a reliable witness, that he was not a witness of truth, and that his claims were rejected as they lacked credibility, and gave detailed reasons for its conclusions with regard to the evidence, claims, and COI before it. The decision-maker, having regard to the evidence before him, rejected core facets of the Applicant’s case, including that Ikram had confessed to the killing of the Applicant’s brother, that the Applicant’s cousin had overheard anyone plotting to kill the Applicant’s brother, and that the Applicant gave evidence at a prosecution in relation to his brother’s death or provided evidence that led to proceedings against Ikram. He also found that Ikram did not view the Applicant as a threat or a person who had damaging or incriminating evidence that might be used against Ikram in Pakistan, that Ikram had ample opportunities to harm seriously harm or kill the Applicant but had not done so, and that Ikram had not demonstrated any motive or intention to inflict harm of any kind on the Petitioner now or in the foreseeable future if the Petitioner were refouled. He also refused to accept the claim that Ikram, or anyone associated with him, continued to threaten to inflict serious harm on or kill the Applicant (Paragraphs 77 to 94).

15.  Given the above findings, and on the evidence and COI before it, the NRCPO concluded that the Applicant did not face a real risk of serious harm necessitating non‑refoulement protection if he were returned to Pakistan, that the evidence did not indicate such risk of harm from Ikram or anyone associated or acting with him, and that the evidence indicated Ikram had not had and did not have a genuine intention to seriously harm or kill the petitioner now or in the future. Accordingly the NRCPO did not accept that the Applicant faced a real risk of serious harm of any kind in Pakistan now or in the future for the reasons submitted by him or any other reason which arose on the facts of the case, found that there was no risk of harm established to the relevant standard of proof, and found that the Applicant had failed to establish Persecution Risk, BOR 2 Risk, or BOR 3 Risk (Paragraphs 95 to 101).

16.  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 vitiates the NRCPO Decision. This is especially so as to the assessment, reasoning, and findings regarding credibility, the risk of harm, and consequently Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

17.  I do not see that the allegations in his Affirmation are relevant to the issues before me or assist his application for leave. After all, judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (see the authorities cited in Paragraph 7 above). Moreover, given the vague nature of the allegation I do not see that the Applicant is seeking to rely on, or has established that he is seeking to rely on, matters that arose after the NRCPO Hearing. The first condition in Ladd v Marshall [1954] 1 WLR 1489 is hence not satisfied. I also do not see that the third condition is satisfied, taking into account the extreme vagueness of the allegation when compared to the findings made by the NRCPO, in particular those relating to the underlying facts of the case and the risk of harm. I hence reject the allegations as being inadmissible and irrelevant.

18.  There is hence 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.

Conclusion

19.  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