Hussain Talib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 286/2020

[2025] HKCFI 2149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 286 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;

Order by Deputy High Court Judge Levy:

1.  Leave be granted to the Leave Application.

2.  The Applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as interested party.

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 3 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 27 September 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000286_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncle after the applicant had refused to his demand to transfer to him a piece of commercial land that the applicant’s father had transferred to the applicant. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 30 April 2025. The applicant was late for the hearing, and only arrived after the Urdu interpreter was discharged. Thus, the applicant attended the hearing in person without the assistance of an interpreter. The applicant addressed this court directly in English and told this court the reason for being late. This court told him that as the interpreter had left. I could adjourn the hearing for the arrangement of the interpreter or he could continue with the hearing without the assistance of the interpreter. The applicant said he would like to proceed and that he was comfortable to use English to conduct the proceedings. After having heard from him, I was satisfied that the applicant was able to properly understand and fluently communicate in English, and decided to proceed with the hearing without an interpreter. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

6.The following grounds of review were advanced in the applicant’s Form 86:

(1)  The Board’s Decision was unreasonable and unfair;

(2)  Failure to give sufficient importance or weight to state acquiescence;

(3)  Failure to give enough weight to the relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him;

(4)  Failure to show fair attitude, and to meet the required high standards of fairness.

7.However, the applicant did not provide any particulars in support of his grounds in his affirmation.

8.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant said that he had nothing to add or elaborate on the grounds stated in the Form 86. He had nothing further to say.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]

10.In the present case, after having questioned the applicant on the details of the transfer of the land by his father to him, and considered the COI on Land Registration in Punjab, and considered all the evidence, the Board decided not to attach any weight to the applicant’s assertion about the alleged transfer of ownership by his father to the applicant. The Board found that most of the applicant’s core assertion of his non-refoulement claim has been fabricated and is wholly unreliable. The Board did not accept that the applicant was a credible or reliable witness.

11.The Board further considered state protection, and concluded that there is no evidence that the government and/or the state and or other authorities have acquiesced in the alleged ill-treatment and that there was no reliable evidence that the government of Pakistan was unwilling or unable to afford protection to the applicant.

12.The Board therefore concluded that the applicant has failed to establish his fear of the risks as asserted, and rejected his appeal.

13.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law in its credibility assessment, which being  a finding of fact, this court will not interfere with.

14.Whilst the Board was entitled to reject the applicant’s assertion in relation to the land transfer, the Board did not seem to have considered the applicant’s evidence in relation to the sickle attack that resulted disability on the applicant’s left hand (the Director’s Decision at [6.21] to [6.25]). In view of the Board’s failure to consider the injury and disability on the applicant’s left hand, and failed to question him about it, the Board’s conclusion that there was no evidence or no reliable evidence that he suffered physical and/or mental suffering of the requisite severity (Board Decision at [76])  is arguably unreasonable and tainted by procedural unfairness.

15.A hearing before the Board is a hearing de novo. The Board is required to consider all the materials placed before it. A failure to consider all the relevant materials when assessing the risk factors is a reviewable error: see  Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448 (Barma & Au JJA & Coleman J) at [33] & [43] – [44]. In the circumstances, the Board’s failure to consider all the evidence will arguably render the Board’s Decision unreasonable.

16.Similarly unreasonable is the Board’s conclusion on the state or government protection (Board’s Decision [78]). In the Director’s Decision, the Director had discussed the objective COI in relation to state protection. However, no mention or reference, let alone consideration, has been made to any COI as to whether reasonable state protection would be available. Hence, the Board appears to have failed to observe the highest standard of fairness by demonstrating that it had conducted an independent assessment of COI: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 (Kwan VP & K Yeung J) at [33] – [34].

Conclusion

17.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Order

19.Leave be granted to the Leave Application.

20.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Dated the 28^th day of May 2025

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