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

HCAL 1127/2020

[2025] HKCFI 3490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1127 of 2020

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;

1.  Form 86 be amended as follows:- the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named 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 8 June 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against: (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 26 May 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 7 February 2017 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named both the Director and the Board as the proposed respondents.  The Applicant further named both the Board and the Immigration Department as the proposed interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

4.  The Applicant had requested an oral hearing for the application.  The hearing took place on 21 July 2025.  The Applicant attended in person.  The Applicant however indicated that he had nothing to say.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision as well as in the Board’s earlier decision dated 6 August 2015 (the “Board’s Earlier Decision”), and it is not necessary for me to repeat the same here.  The hyperlinks to (1) the Board’s Decision[1]; and (2) the Board’s Earlier Decision[2] are included below for reference.

Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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 Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  The Applicant did not provide any grounds in the Form in support of the Leave Application.

8.  In the supporting Affirmation, the Applicant made a number of allegations in respect of the Board’s Decision.  I shall deal with those allegations in turn briefly hereinbelow. 

9.  First, the Applicant claimed that he had never received the letter from the Immigration Department dated 13 January 2017 in which the Immigration Department invited the Applicant to submit additional facts relevant to his claim for non-refoulement protection, including risk of any of his absolute and non-derogable rights under the Hong Kong Bill of Rights being breached, including specifically the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”) (§3 of the Board’s Decision).  I note that the Applicant raised similar allegation before the Board in the Notice of Appeal dated 29 March 2018.

10.  I do not consider this allegation assists the Applicant in the Leave Application. Even assuming that the Applicant did not receive the letter dated 13 January 2017 as alleged, he had in fact been given a further opportunity to submit additional facts and make submissions before the Board on 17 April 2020 (§§8-9 of the Board’s Decision).  The Applicant was thus given the right and opportunity to present his case properly.  I do consider there was any error committed by the Board in this regard.

11.  Second, the Applicant complained about the lack of translation and language assistance.  In Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of 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 a claimant 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.  In any event, I note that all the court documents (the Form and the supporting Affirmation) were all written in English.  This indicates either the Applicant is familiar with the English language or that he had access to, or was able to seek, such language assistance as he may require.  There is no evidence to suggest that there was procedural unfairness in this regard.  I further note that at the hearing on 21 July 2025, despite the presence of a court interpreter, the Applicant indicated that he had nothing to say. 

12.  Third, the Applicant complained about the lack of legal assistance.  The Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the HKBORO or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22.  In the present case, the Applicant was legally represented in the initial stage. Before the Board, he was given a fair opportunity to present and clarify his case on 17 April 2020 and he in fact did so.  I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board.  I also note that at the hearing held on 17 April 2020 before the Board, the Applicant did not raise this “lack of legal assistance” argument.    

13.  Further and more importantly, I agree with the Board and do not consider that the evidence supports a case of Article 2 of Section 8 of the HKBORO.  The Applicant’s claim arose out of a traffic accident and there is no evidence that his absolute and non-derogable rights would be breached (§§17-20 of the Board’s Decision).

14.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Decision was entitled to come to the conclusion it did (§§10-21 of the Board’s Decision).  The Board was also entitled to conclude that the Applicant can be relocated to other parts of Pakistan if he feels that there is still threat in the particular area (§§15-16 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is no basis to say that the Board had failed to assess the Applicant’s claims properly.  

15.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

16.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant. 

Conclusion

17.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en//2020/HCAL001127_2020_files/the_Board's_Decision.pdf

[2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en//2020/HCAL001127_2020_files/Earlier_Board's_Decision.pdf