ALI HASSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1704/2020

[2025] HKCFI 5360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1704 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.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 24 August 2020, the Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 14 July 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration dated 23 January 2018 (“the Director’s Decision”), which rejected his non‑refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The material facts of this case, including the Applicant’s personal background, his case and claim that he would be harmed or killed by his friend’s family in Pakistan if returned, together with the relevant immigration and procedural history, were set out in the Board’s Decision, the hyperlink to which is included below[1], and will not be repeated.  Unless otherwise specified, the abbreviations and descriptions used by the Board are adopted herein. 

Background          

3.  For the reasons set out below, the Applicant’s intended application for judicial review of the Board’s Decision is not reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  In light of the seriousness of the issues involved, I have reminded myself of the enhanced standards required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.  The Applicant’s principal complaints are that he was not provided with free legal and language assistance throughout the proceedings.  He contends that, following the Director’s Decision, he was no longer represented by the Duty Lawyer.  He claims that he was thereby deprived of his basic rights as a litigant, including being informed of his legal entitlements and being able to receive all relevant information.  He further alleges that the Board’s Decision was not written, translated or read to him in his first language.  Without being properly advised of the reasons for the rejection of his claim, he asserts that he was unable to formulate full grounds of appeal.

5.  However, these complaints, even taken at their highest, do not establish any breach of the applicable standards of fairness, nor any deprivation of a meaningful opportunity to pursue his case.  As held by the Court of Final Appeal, the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007 do not prescribe an absolute right to free legal representation at all stages (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176).  Nor do they require interpretation services to be made available at all times (see Re Gurnishan Singh [2018] HKCA 704; and Re Gurung Sagar [2019] HKCA 658). 

6.  Specifically, on the facts of the present case, I am unable to accept that the appeal was hindered or that the process was procedurally unfair, as alleged by the Applicant, taking into account the following matters:

(1)   The Applicant lodged his appeal on 29 January 2018 and attended a hearing before a previous Adjudicator on 31 July 2018.  At that hearing, the Applicant spoke with the assistance of an Urdu interpreter.  However, he refused to answer any of the Adjudicator’s questions.

(2)   As that Adjudicator was unable to complete the case, it was re-allocated, and the Applicant was duly notified of this and informed of a new hearing.  The hearing was arranged to allow the Applicant to clarify matters, raise any developments since the previous hearing, and submit any new information.  At the hearing held on 23 December 2019, the Applicant was again assisted by an Urdu interpreter.  However, he continued to refuse to answer any questions.  It was explained to the Applicant that, as his statement and the interview were brief and no other evidence had been provided, the papers contained insufficient information for the Board to reach a positive conclusion on his case; he was clearly warned that, if he did not co-operate with the Board and answer its questions, he could expect to receive a negative decision. Nevertheless, he continued to refuse to answer any questions, and the hearing was brought to an end.

(3)   It is quite apparent that the Applicant was given sufficient opportunities to present his case.  It could not possibly be open to the Applicant to now complain that his situation was not fairly taken into account by the Board, or that he was not given a proper opportunity to clarify matters.

7.  It was indisputable that the Applicant was under a duty to co-operate with the Board in the conduct of the appeal.  His refusal to answer the Board’s questions constituted a failure to discharge that duty and, as a result, adversely affected the Board’s assessment of his appeal.  While an advanced standard of fairness applies to such proceedings, it could not assist the Applicant who failed to engage with the process or provide the necessary information to support his claim:

(1)   The Board observed that the Applicant’s claim, as set out in his statement, was very similar to a number of other claims from nationals of Pakistan that the Board had dealt with in the past year.  While the Board noted that it could never be determinative, and there could be no doubt that such similarities might simply reflect coincidence or shared experiences, it nevertheless reinforced the Board’s conclusion that vague assertions alone were insufficient to discharge the burden of proof.

(2)   Had the Applicant been willing to respond to the Board’s questions, it would have been able to closely examine all relevant circumstances and arguments.  However, in light of his refusal to co-operate, his assertions remained untested and could only be given limited weight.  The Board also found that there were serious difficulties with the content of those assertions and concluded that they could not be accepted at face value.  Accordingly, the Applicant had not established any of the fats he had asserted.

(3)   Given the findings of fact, there was nothing in the background suggesting a risk of persecution. Nor was there any basis to conclude that the Applicant faced a real risk to his life, or that he would be exposed to torture or cruel, inhuman, or degrading treatment or punishment.  The Board also found that the Applicant would face no real risk of torture if returned.

8.  The aforesaid assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation was properly within the province of the Board.  The Board’s conclusions were drawn from the available evidence and the Applicant’s repeated refusal to participate meaningfully in the process.  The Board specifically noted that it was unable to establish the details of what it considered to be the “key” aspects of the Applicant’s claim. It could not, therefore, be said by the Applicant that the Board was biased or that it made its determination based on mere assumptions.  Nor could it be validly asserted that the Board lacked a proper basis to challenge his credibility, or that his case ought not to have been rejected on that ground.

9.  In the absence of errors of law, procedural unfairness, or irrationality, it is not for the Court to usurp the role of the Board as the primary decision-maker.  Judicial review does not operate as a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

10.  Accordingly, I refuse to grant leave to the Applicant to apply for judicial review and order the application herein be dismissed.

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