JAVED MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 152/2020

[2025] HKCFI 2126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 152 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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 15 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “the decision made on unknown date but notice on of 8 Oct 2018, the decision dated 7 Jan 2020, Torture Claims Appeal Board” [sic.].  He named the Torture Claims Appeal Board (the “TCAB”) as the proposed respondent and the Director of Immigration (the “DOI”) as a proposed interested party.

2.  From the papers filed for this application, there was a decision dated 7 January 2020 by the TCAB (the “TCAB Decision”) which affirmed the DOI’s decision dated 28 September 2018 refusing the Applicant’s non-refoulement protection claim.  As the hearing before the TCAB was de novo in nature, I take it that the Applicant is seeking judicial review of the TCAB Decision only.

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 be seriously harmed or even killed by the family of his wife as they did not approve of their marriage.  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 affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  At the hearing, the Applicant informed me that he got married to a Hong Kong citizen about 3 years ago and was not waiting for a dependent visa.  His wife was now unwell and there was no one else to take care of her.  Unfortunately, these matters have no relevance to the issues at hand.

8.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB, including the Applicant’s testimony before the TCAB [5-32].  The TCAB then set out the correct assessment approach [33-41] and concluded that most of the factual allegations were made out [42], including that his wife in Pakistan died from the injuries she sustained in one of the attacks by her brothers in late 2011 [42(g)].

9.  With the above findings, the TCAB proceeded to analyse each of the four applicable grounds under the USM, bearing in mind the correct legal principles applicable to each, but concluded that :-

9.1  Torture risk was not made out, for reason that the harm in question does not fall within the definition of s.37U(1) of the Immigration Ordinance [44-54];

9.2  BOR 3 risk was not made out, for reason that state protection and internal relocation were available [55-65];

9.3  Persecution risk was not made out, for reason that a reasonable system of state protection and internal relocation were available [66-74];

9.4  BOR 2 risk was not made out, for reason that the accepted allegations did not amount to such risk [76-77].

10.  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

11.  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