Ourang Zaib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 537/2020

[2025] HKCFI 3620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 537 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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent,; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a citizen of Pakistan. By a Form 86 dated and filed on 7 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision dated 11 March 2020 (“TCAB Decision”), which is a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”)[1].

2.The TCAB Decision is the only document exhibited to his supporting affirmation also dated and filed on 7 April 2020 (“the Affirmation”). I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.No grounds for judicial review are set out in the Form 86 or the Affirmation.

4.The Applicant sought an oral hearing of his application, but did not appear at such. I have hence dealt with his application on the papers.

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 TCAB Decision, are set out in the latter. I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that he would be harmed, ill-treated, or killed by his paternal aunt (“Aunt”) and her two sons due to a family land dispute;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 31 October 2017 (“Director’s Decision”), subsequent to which the Applicant submitted an appeal/petition to the TCAB/NRCPO; and

c.  The appeal/petition before the TCAB/NRCPO was heard on 2 December 2019.

6.The TCAB Decision was subsequently handed down. As summarised at paragraphs 64 to 65 thereof, the TCAB rejected his claim for non-refoulement on all grounds, finding also that the risk was localised and could be eliminated by internal relocation without undue hardship, and confirmed the Director’s Decision.

Relevant parties and decisions in relation to which leave is sought

7.The Affirmation claims it is made in relation for leave to judicial review “against the the [TCAB Decision] as well as [Director]”. However, in the Form 86 the Applicant only named the TCAB as the putative respondent, only sought relief in relation to the TCAB Decision, and named the Director as the only putative interested party. I hence did and do not understand the Applicant to be seeking leave to commence a judicial review of the Director’s Decision. If and insofar as he apparently seeks such leave, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

8.I have therefore amended the Form 86 of my own motion to reflect the full identity of the proper putative respondent.

Legal Principles

9.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).

10.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).

11.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

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

13.The TCAB Decision set out the Applicant’s procedural and immigration history, identified his fear of being harmed or killed by his Aunt, and the decision-maker’s approach to materials, COI, and function (Paragraphs 1 to 12), followed by the overall conduct of the hearing including that the Applicant had the assistance of an interpreter and the explanations, reminders, notifications, and opportunities given by the TCAB/NRCPO (Paragraph 13). It then outlined the contents of and principles relating to the 4 relevant grounds of risk (Paragraphs 14 to 26).

14.The TCAB/NRCPO then moved on to the Applicant’s case as set out in the NCF and Interview (Paragraphs 27 to 47) and to the evidence given at the hearing (Paragraphs 48 to 56). It then set out its analysis, reasons, and conclusion as to why none of the 4 bases of risk were made out, and that in any event internal relocation was viable and reasonable, that hence the Applicant was hence not entitled to non-refoulement relief and the Director’s Decision was confirmed (Paragraphs 57 to 65) including the following in particular:

a.  The Applicant was not found to be a credible or truthful witness;

b.  In any case, none of the 4 bases of risk were established having regard to the principles and the evidence (including COI) before it as relevant to topics such as the extent, purpose, and severity of past experiences, and state acquiescence; and

c.  As to internal relocation, even if there were was a risk of harm as claimed, on the facts such was confined to the local area where he and his family had lived and he could hence relocate internally without undue hardship.

15.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 TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s credibility, the risk of harm, and consequently Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk[6], as well as internal relocation, which are all matters primarily within the province of the decision-making body.

16.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

17.In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out above.

Dated the 22^nd day of August 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