MUZIBUR RAHAMAN alias FAZLU RAHAMAN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1181/2021

[2026] HKCFI 3242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1181 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   The Applicant’s Form 86 be amended to name the Board as just a putative respondent and the Director of Immigration as just a putative interested party;

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

Observations for the Applicant:

1.   By a Form 86 filed on 23 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of an adjudicator of the Torture Claims Appeal Board/Non‑Refoulememt Claims Petition Office (“the Board”) on 12 August 2021 (“the Board’s Decision”).  The Board made the decision after an oral hearing on 16 March 2020 of the Applicant’s appeal/petition against the first tier decision of the Director of Immigration (“DI”) made on 13 August 2018.  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.   The Applicant is an Indian national.  He claimed to have witnessed three members of the Communist Party of India (Marxist) Party beating up an unknown man in 2004.  Those three members saw the Applicant, beat him up too and threatened to kill him if he reported the incident to the Police.  The Applicant then took a flight to Hong Kong and stayed until 2012.  He made a torture claim during the stay, but it was rejected.  After being convicted of “breach of condition of stay” and “possession of a false instrument”, and served the relevant prison sentence, he was deported back to India.

3.  After his return to India in 2012, he allegedly learnt that the person being assaulted in 2004 had died because of that incident.  The deceased’s brother got in touch with the Applicant, firstly in September 2012 and again in early 2013.  It was said this brother was a businessman with close connection with a political party.  This brother requested the Applicant to give a statement to the Police about the 2004 incident, to which the Applicant refused because he did not want to be involved in the case.  The Applicant was then attacked and threatened to be killed by that brother.  He therefore decided to leave India for Hong Kong the second time in around August 2013.  He obtained permission to stay on the strength of a new passport, again overstayed, was arrested by the Police in 2015, was convicted of the breach of the previous deportation order and made a non-refoulement claim later that year.    

4.  After a hearing, the Board found the Applicant’s claim not credible because of the inherent improbability of certain assertions of his in relation to the various incidents of him being assaulted.  Moreover, the time he stayed in India after the brother’s last attack in early 2013, the renewal of his passport in February 2013 and the travelling record he had before landing in Hong Kong in August 2013 were also taken into account.  In any event, the likelihood of his claimed risk of being attacked materializing was found to be low, State protection and internal relocation alternative were also found to be available.     

5.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application.  First, he also wished to challenge DI’s first tier decision as his claim for non-refoulement protection was “one case and determined together”.  He said he should not be regarded as out of time because he needed to spend time pursuing the avenue of appealing to the Board first.  This ground can be readily rejected.  Authorities clearly establish that the proper procedure is for a claimant to appeal/petition against DI’s first tier decision to the Board first.  After the Board’s decision is made, it substitutes DI’s first tier decision and there is no utility in judicially challenging that first tier decision.  This Court does not need to entertain any challenge against DI’s first tier decision.

6.  Secondly, he complained about the lack of legal and language assistance after the Duty Lawyer Service had decided not further representing him in the process before the Board.  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 FB v Director of Immigration [2009] 2 HKLRD 346 required a non-refoulement claimant to have an absolute right to free legal representation at all stages of the proceedings (see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37).  The real question is whether the Applicant was prejudiced.

7.  The Applicant was unable to point out what prejudice he had suffered as a result of the lack of legal representation. Given the Applicant had the benefit of legal representation in the tier-one process handled by the DI, including the submission of non-refoulement claim form and attending the screening interview, I do not see the ground being made out in the absence of any specific prejudice.

8.  As to the language assistance, the Applicant himself confirmed in the affirmation that he was provided with an interpreter in the Board’s hearing.  His real complaint is that the Board’s Decision was written in English, which he could not understand.  But by the time the Board’s Decision was handed down, the process before the Board had been completed. This is not a ground of procedural unfairness against the process.  The Board’s choice of language also does not per se reflect the adequacy of his reasoning.

9.  Natural justice does not require administrative decision-makers to proactively translate the outcome and reasons for decision to an affected person’s preferred language or engage an interpreter to provide such post-decision service.  The affected person should engage his own language assistance to understand the outcome and reasons for decision.  In this regard, the Court also notes that the Form 86 and supporting affirmation filed by the Applicant were written in very proper English.

10.  Thirdly, the Applicant vaguely suggested that the Board did not make sufficient enquiries about the case, did not give opportunity to him to clarify issues or explain, “put words in [his] mouth”, was biased and made assumptions which were not justified.  However, there was no elaboration of these vague suggestions in the papers or orally in Court.  To the contrary, when the Applicant was asked by this Court through interpreter what he meant by the Board “putting words in [his] mouth” and biased in this case, the Applicant said nothing like that happened.  He said he had told someone to write some grounds of judicial review for him, and he was not aware of the actual content of the grounds.  In such situation, it is impossible for the Court to accept such grounds to be reasonably arguable.   

11.  I have reviewed the Board’s Decision vigorously. In my judgment, the Board’s Decision was supported by sound factual findings, and the Board had conducted an anxious scrutiny of the claim.  I am unable to detect any error on the Board’s part and do not see any merits in his intended judicial review at all.  In view of the facts of the case, including the lateness of the Applicant’s lodgement of claim after landing in Hong Kong, I also think, even if (which is not so found) there is any procedural impropriety, the result of his appeal/petition would be bound to be the same. It is not reasonably arguable that any meaningful relief will be granted after substantive judicial review proceedings.  This is an additional ground why extension of time must be refused. 

12.  The leave application to apply for judicial review is thus dismissed for being made out of time and also for devoid of merits.

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