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

HCAL 2750/2019

[2025] HKCFI 5066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2750 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 19 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 16 August 2019 (the “2019 Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 January 2015 (the “Notice”), his non-refoulement claim form (“NCF”) and the record of his screening interview (“ROI”) before the immigration officer.   

2.  Previously, the Board had made a decision on 17 February 2017 (the “2017 Decision”) dismissing the Applicant’s appeal against the Director’s decision in his Notice of Decision refusing his claim under Torture Risk^[1]; BOR 3 Risk^[2] and Persecution Risk^[3] grounds then available under the Unified Screening Mechanism (“USM”). That decision is now final.  By its 2019 Decision, the Board dismissed the Applicant’s appeal against the Director’s decision in his Notice of Further Decision (the “Further Notice”) dismissing his claim under BOR 2 Risk^[4] ground.  

3.  His NCF is a document of his own creation.  His ROI is a record of what he told the immigration officer about his claim.  Neither of these documents is a decision of the authorities.  They are not subject to judicial review by the court.  While the Decision of the Board is reviewable by judicial process, the decision of the Director in the Further Notice is not, because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Further Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. In the circumstances, the Court only has jurisdiction to consider his leave application in respect of the Board’s 2019 Decision. 

The Applicant’s claim

4.  The Applicant is a national of Pakistan.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[6] for reference.  In gist, he claims he will be harmed or killed by his enemy if returned to Pakistan because of a land dispute. 

Grounds for judicial review

5.  In his supporting affirmation, the Applicant repeated the facts on which his non‑refoulement claim is based, that the situation in his home country has not changed and that his life would be in danger, if he is refouled. He repeated his wish to stay in Hong Kong.  He advanced three grounds of application.

6.  First, he complained that he never had received the letter from the Immigration Department inviting him to provide further information about his claim under BOR 2 ground.  His allegation is hardly credible.  He appealed the Further Notice.  He must have received it.  It was stated clearly in the Further Notice that he had not responded to the Immigration Department’s letter inviting further information and that he had not provide any.  If he had not received that letter, he must have raised that as one of his grounds of appeal.  But he did not.  When confronted, he explained that he did not tell as he was not asked.  That he had not received the letter is a fact only known to himself and not to the Immigration Department or the Board. The Board could not have asked and the Immigration Department could not have informed the Board of such alleged non‑receipt.  The Applicant is simply not telling the truth.  The non-receipt is a late invention.  It is not true.  There is no substance in this ground.

7.  Second, the Applicant complained that the Decision was unfair because he was not provided with language assistance in prosecuting his appeal before the Board.  He accepted he had been given language assistance in preparing his non-refoulement claim form (the “NCF”), at the screening interview and at the hearing before the Board.  His complaint is that thereafter he was not given such assistance in preparing for his appeal and in understanding the Decision of the Board.

8.  As a matter of law, a claimant does not have an absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[7], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.   There is a sizeable Punjabi community in Hong Kong from which he could seek assistance.  Indeed, with his friend’s assistance, he was able to file an adequately well written Notice of Appeal to the Board and an equally well written affirmation in English before this Court for his leave application.

9.  Third, the Applicant complained that the Decision was unfair because he was not provided with legal representation in prosecuting his appeal before the Board.  As was held by the Court of Appeal in Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

10.  The Applicants had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in the written submissions, the NCF and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

Overall scrutiny

11.  Having rigorously examined the 2017 Decision and the 2019 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  In the 2017 Decision, it found him not a reliable witness and doubted whether his true intention was to seek protection in Hong Kong.  Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found in the 2017 Decision that the Applicant had failed to establish the factual basis to support his claim for protection under the Torture Risk; BOR 3 Risk and Persecution Risk grounds.  In the absence of further information and in view of its finding in the 2017 Decision which is now final, it found there is no merit in his claim under BOR 2 Risk ground.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

12.  For the above reasons, the Applicant’s leave application is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  [2018] HKCA 549

[6] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002750_2019_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002750_2019_files/2nd_Board's_Decision.pdf

[7]  CACV 78/2018

[8]  cacv 2/2018, (unreported) 23 March 2018

[9]  [2018] HKCA 14

[10] [2018] HKCA 15

[11] [2018] HKCA 17

[12] [2018] HKCA 37

[13] (2004) 7 HKCFAR 187

[14] HCAL 51 of 2007