ASIF MUHAMMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 179/2023, [2025] HKCA 630

On appeal from [2023] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2023

(ON APPEAL FROM HCAL 639 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  This is the applicants’ appeal against the decision of Deputy High Court Judge K W Lung dated 31 May 2023 (the “Judge’s Decision”) refusing to grant leave to the applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”, and the “Board’s Decision”) concerning their non‑refoulement protection claims[1].

Background

2.  The background of this case is set out in the Judge’s Decision.  We will not repeat it in detail here.  In gist, the applicants are nationals of Pakistan.  The 1^st and 2^nd applicants are husband and wife.  The 2^nd applicant was the widow of the 1^st applicant’s brother (“Aman”).  The 3^rd applicant was born in 2002.  He is the son of the 2^nd applicant with Aman, and is now the 1^st applicant’s stepson.  The 4^th to the 6^th applicants are children of the 1^st and 2^nd applicants.  They were born in 2006, 2008 and 2016 respectively.  The 1^st to 4^th applicants had previously raised their refugee applications to the United Nations High Commissioner for Refugees.  The 1^st to 5^th applicants had also lodged their torture claims, which were rejected in 2013.  Their appeal concerning their torture claims was dismissed by the Board.  The 1^st applicant lodged non-refoulement claims for himself and on behalf of his wife and the four children.  Their claims were made on the basis that, if refouled, they would be harmed or killed by a gang of notorious murderers and extortionists (“the extortionists”).  The 1^st applicant also feared that he would be wrongfully arrested and imprisoned because of the false criminal case that had been filed against him.

3.  By a notice of decision dated 28 July 2017, the Director of Immigration(“the Director”)informed the applicants that the irnon-refoulement claims were rejected.  The applicants appealed against the Director’s decision to the Board.  Both in their claims and appeal, they were represented by lawyers instructed by the Duty Lawyer Service.

4.  A hearing was conducted before the Board on 6 June 2018.  At the time of that hearing, the 3^rd to 6^th applicants were aged 16, 11, 9 and 2 respectively.  The Board gave its decision on 12 December 2018.  The Board accepted for the purposes of the decision that the 1^st applicant was at a real risk of harm from the extortionists at the time when he last left Pakistan[2], and that state protection might not be adequate if they were to return to their home in Rehan Cheema[3].  However, the Board found that there would generally be sufficient state protection for the applicants in Pakistan[4] and that they could safely relocate to another city in Pakistan either within Punjab Province, such as Faisalabad, or to Islamabad Capital Territory or Hyderabad in Sindh Province, which have police authorities separate from Punjab, and which are all large cities with a majority or substantial minority of Punjabi speakers[5].  The Board confirmed the Director’s decision and rejected the applicants’ appeals on all applicable grounds.

The intended judicial review

5.  On 6 March 2019, under HCAL 639/2019, the applicants filed a Form 86 (supported by the 1^st applicant’s affirmation filed at the same time) for leave to apply for judicial review against the Board’s Decision.  Four grounds were put forward.  They may be summarized as follows:

(1)  The Board’s finding that internal relocation is available to them is manifestly unreasonable;

(2)  The Board’s finding that state protection exists in other parts of Pakistan is manifestly unreasonable, as there is no evidence that state protection exists in other parts of the country;

(3)  The Board had down-played and in part ignored compelling country of origin information (“COI”), and refused to even assess the existence of a consistent flagrant pattern of human rights abuses which exists in Pakistan, which amounts to both unreasonable decision and an error in law; and

(4)  The applicants’ actions and public challenge to those threatening and targeting them became a public condemnation in the courts and media.  The exercise of rights and the criticism and challenge to a corrupt government amounts to political opinion and thus grounds for refugee protection.

The Judge’s Decision

6.  The hearing before DHCJ K W Lung took place on 7 December 2022[6].  In respect of ground 1, the judge found that the applicants had no evidence to challenge the Board’s relevant findings.  On the complaint that the Board had failed to consider the situations stated in ground 1, the judge noted that the applicants did not allege that their legal representative had put those issues before the Board but were not considered by the Board.  As the burden was on the applicants to prove the issue of internal relocation, the judge considered that the Board had no burden to take them on board if their legal representative did not raise them before the Board.

7.  The judge rejected grounds 2 and 3 as he found that the applicants’ disagreement with the Board’s Decision were just their personal opinions which were not supported by any evidence.

8.  The judge further found that the applicants did not have any evidence to challenge the Board’s findings of facts in respect of ground 4, and that the Board was entitled to reach its conclusion on the facts of the case after hearing the evidence and legal submissions. 

9.  The judge concluded that there was no error of law or procedural unfairness in the Board’s Decision, and that the findings of the Board were not in any respect open to challenge as being Wednesbury unreasonable or irrational.  As the applicants had failed to show that they had any realistic prospect of success in their proposed judicial review, the judge refused their leave application.

Grounds of appeal

10.  The applicants stated the following grounds of appeal in the Notice of Appeal filed on 14 June 2023 (the “Notice of Appeal”):

(1)  The judge made an error of law under Fabio Arlyn   Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, by failing to identify the adjudicator’s error in anlysing the particularized risk to the children.  In particular, the judge failed to analyse the risk to the 3^rd applicant even though his biological father was killed and the adjudicator acknowledged that the extortionists had made threats to his life;

(2)  The judge made an error of law by stating that Fabio does not apply to children who are represented before the Board;

(3)  The decision that the 1^st applicant and the members of his family can internally relocate is flawed and unreasonable as the 1^st applicant is not able to internally relocate without cutting off all ties to family and hiding.  The judge failed to meaningfully engage with this argument;

(4)  The adjudicator made an error in law by failing to conduct an analysis of the particular risk to the 2^nd applicant, given that her first husband was killed by the extortionists and she faces particular and unique risks as a woman and mother of a child who is also targeted.  The judge erred in law by holding that the adjudicator could determine the claim as a whole rather than analyzing the individualized risks to each claimant;

(5)  The judge failed to meaningfully engage with the applicants’ 3^rd ground for leave that the adjudicator ignored compelling COI which was unreasonable and an error in law.  The judge erred in paragraph 30 by apparently requiring the applicants to provide additional evidence to the High Court.

11.  On 3 February 2025, a Supplementary Notice of Appeal was filed.  It was settled by counsel.  It contains 8 grounds:

(1)  Grounds 1 to 3 all relate to the issue of internal relocation (collectively the “Internal Relocation Grounds”):

a.  Ground 1 – The judge failed to take account of arguments that the Board had not considered that relocation would be unreasonable and unduly harsh, since it would require the applicants to “go underground” and cut off family ties;

b.  Ground 2 – The judge failed to take account of/was plainly wrong in rejecting arguments that the Board’s conclusion on relocation was unreasonable since it was based on speculations and assumptions about first information reports (“FIRs”) and tenant registration contrary to the COI before it;

c.  Ground 3 – The judge failed to take account of/was plainly wrong in rejecting arguments that the Board “cherry picked” COI in concluding that state protection was available in Pakistan whereas the COI before it but not referred to by the Board showed routine torture, CIDTP[7], custodial deaths and beatings, corruption, impunity, arbitrary arrest and detention across and throughout Pakistan;

(2)  Grounds 4 to 5 concern the 3^rd to 6^th applicants (the “Separate Consideration Grounds”), which complain that:

a.  The Board and the judge failed to consider risks to the 3^rd applicant whose biological father was murdered and who was subject to two attempts to kidnap him;

b.  The Board and the judge failed to consider risks to the 3^rd to 6^th applicants arising from the extortionists and the fact that the 1^st applicant was at real risk of harm in and around Sialkot;

c.  The Board and the judge failed to consider whether internal relocation would be reasonable and not unduly harsh for the 3^rd to 6^th applicants who would also have to “go underground”/cut off contact with their family and who have spent no or no significant time in Pakistan;

d.  The judge erred in law or in principle in reasoning that separate consideration of the 3^rd to 6^th applicants’ claims was not required because they were legally represented before the Board;

(3)  Grounds 6 to 8 involve new arguments not canvassed before the judge which are said to be not facts or evidence sensitive:

a.  The Board failed to determine whether the 1^st applicant would be tried in military court for the wrongfully alleged Firearms FIR[8] while the COI show that trials proceed incommunicado without bail, legal representation or appeal, which would amount to a flagrand enial of justice and a ground of non-refoulement protection under Articles 10 and 11 of the Hong Kong Bill of Rights (Ground 6);

b.  The Board was unreasonable/irrational in doubting the authenticity of the Firearms FIR (Ground 7);

c.  The Board was unreasonable/irrational in speculating and assuming how foreign non-state actors/powers viz the extortionists would act and conduct themselves and the geographical extent of their reach/power, without reference to the COI (Ground 8).

Legal principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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.

Analysis 

The 3^rd to 6^th applicants’ appeal

14.  By letter dated 14 February 2025, the Board indicated its neutral stance in the appeal and sought to be excused from the hearing of the appeal.  By letter dated 17 February 2025, the Department of Justice acting for the Director informed the court that the Director agreed that the 3^rd to 6^th applicants’ appeal should be allowed as no separate consideration had been given by the Board in the assessment of their claims regarding their personal circumstances.  Save that agreement, the Director took a neutral stance in the proceedings, and also sought leave to be excused from attending the appeal.

15.  In light of the Director’s said agreement, we will first deal with the Separate Consideration Grounds raised specifically for the 3^rd to 6^th applicants.

16.  Despite the said agreement, the Court of Appeal will only allow the 3^rd to 6^th applicants’ appeal if it is satisfied that it is appropriate to do so: see A & Others v TCAB[2024] HKCA 471 at §30.

17.  Theproperapproachwhendealingwithchildren’snon-refoulement claims has been considered by the Court of Appeal in Fabio (at §34) and Re Jasvir Singh [2021] HKCA 53 (at §30).  It has been established that:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations; and

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

18.  The duty of the Board to consider a minor’s non-refoulement claim separately from his/her parent(s)’ non-refoulement claim(s), even if they arise out of the same facts, applies regardless of whether the minor is legally represented before the Board – Begum Shufia & Others v TCAB [2024] HKCA 687 at §18, applying A & Others at §§40-42.

19.  At §23 of the Judge’s Decision, the judge stated that:

As a preliminary issue, although there are minors in their joint application, the case of [Fabio] does not apply to them as they were legally represented before the Board.  As to the position before this Court, I shall deal with it accordingly after considering the merits of their case.

20.  The Judge’s Decision predated both A & Others and Begum.  The judge’s view on the non-applicability of Fabio to represented minor claimants is inconsistent with them, and constitutes an error of law.

21.  Flowing from that error of law, the judge failed to properly apply the guidance in Fabio, and did not take into account the following errors in the Board’s Decision when dealing with the leave application:

(1)  We have set out above the ages of the 3^rd to 6^th applicants at the time of the hearing before the Board.  They were then all minors;

(2)  The Board erred in failing to give sufficient separate consideration to the risks to the 3^rd applicant (whose biological father had been murdered, and that according to the applicants’ case[9], there had been two attempted kidnaps of the 3^rd applicant) with regard to his personal circumstances[10];

(3)  The Board also did not give sufficient separate consideration to the personal circumstances of the 4^th to 6^th applicants when assessing their non-refoulement claims;

(4)  The judge in fact at §19(11) of the Judge’s Decision correctly summarised the approach adopted by the Board, but failed to heed that it is in fact an error of law given his own view on the non-applicability of Fabio to represented minor claimants.  §19(11) of the Judge’s Decision summarised the Board’s approach as follows:

Finally, in relation to [the 2^nd applicant] and their children, the Board found that the applicant had not [advanced] a separate and distinct claim in respect to them and, for the same reasons stated above, the Board also rejected their claims and dismissed their appeals.

22.  For the above reasons, it is at least reasonably arguable that the Board’s assessment of the 3^rd to 6^th applicants’ claims is contrary to the principles laid down in Fabio,A & Others and Begum.  We are hence of the view that the 3^rd to 6^th applicants’ intended application for judicial review is reasonably arguable and has a realistic prospect of success.

23.  For the above reasons, we conclude that it is appropriate to allow the appeal of the 3^rd to 6^th applicants and grant leave for them to seek judicial review on the Separate Consideration Grounds.

The 1^st and 2^nd applicants’ appeal

The Internal Relocation Grounds 

24.  State protection, safety of any internal relocation alternatives, and the reasonableness of the internal relocation alternatives are all considerations relevant to the issue of internal relocation.  As explained by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 (CA) at §33:

There may be different reasons why the risk of torture is a localized one.  For instance, where the torturer is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned.  Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is nonexistent or insubstantial.  If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.

25.  We have summarised Grounds 1 to 3 above.  They relate to the aforesaid considerations.

26.  One feature of this case stands out.  As we have mentioned above, the Board accepted for the purposes of the decision that the 1^st applicant was at a real risk of harm from the extortionists at the time when he last left Pakistan[11], and that state protection might not be adequate if they were to return to their home in Rehan Cheema.  The Board dismissed the applicants’ claims on the basis that they could safely relocate to another city in Pakistan.  On the Board’s findings, we accept Mr Baker’s submission that whether the applicants could relocate safely and reasonably within Pakistan is a critically important question, one which is determinative of the claims.

27.  Relevant to the issue of internal relocations are the following additional findings and assumptions made by the Board for the purpose of the Board’s Decision:

(1)  The applicants’ legal representative specifically submitted to the Board that there is no internal flight alternative since police officers are involved^[12];

(2)  The Board accepted that there were police officers involved in the murder of Aman (1^st applicant’s brother)^[13];

(3)  The Board accepted that the 1^st applicant was at real risk of harm from the extortionists when he last left in Pakistan^[14];

(4)  The Board assumed for the purpose of the Board’s Decision that if the applicants return to live in rented accommodation in Pakistan, their tenancy will be registered under the tenant registration system, and that the police in the district where they live will have access to that record[15]; and

(5)  COI shows that provincial police would have access to the registered tenant information which could be shared with the force of another province when the need arises^[16].

28.  We have also considered a news report amongst the COI which Mr Baker referred to in the course of the hearing (the “World News Report”).  He submitted that it was relevant to Ground 3.  It concerns so-called “honour killings” that took place 28 years after the event.

29.  Given the above, we think it is reasonably arguable that it is irrational for the Board, when assessing whether it is safe for the applicants to relocate to other places in Pakistan, not to have considered the possibility of the police officers related to the extortionists and involved in the murder of Aman being able to get the applicants’ information registered in the tenant registration system for the purpose of locating and getting to them.  Furthermore, we also take the view that the Board’s conclusion on internal relocation does not seem to be supported by sufficient analysis of or reference to the COI.

30.  The above gives credence to the applicants’ claim that if they were to be refouled, they would need to live underground and cut off family ties.  These considerations relate to the reasonableness of any relocation and whether it would be unduly harsh to expect or require the applicants to do so.  The judge has not specifically addressed them.

31.  We also found that the Board did not explain the basis upon which it reached the conclusion that there would generally be sufficient state protection for the applicants in Pakistan despite the many defects in policing in Pakistan as shown in the COI.  When the Board had already acknowledged that the COI referred to by the applicants’ legal representative has shown many defects in the policing in Pakistan[17], we consider it is reasonably arguable the judge’s finding that the applicants’ disagreement with the Board was just their personal opinions may be unfounded.  Further, we consider it reasonably arguable that the judge erred in having failed to consider the COI referred to by the applicants in reaching the conclusion that the applicants’ opinions against the Board are not supported by evidence.

32.  For the above reasons, we are of the view that the Internal Relocation Grounds are made out.  We allow the 1^st and 2^nd applicants’ appeal on those grounds. Whilst we have allowed the 3^rd to 6^th applicants’ appeal on the Separate Consideration Grounds, their appeal should be allowed also on the Internal Relocation Grounds.  We grant the 1^st and 2^nd applicants leave to seek judicial review on those grounds, and the 3^rd to 6^th applicants leave to seek judicial review on those further grounds.

New Grounds 

33.  Four new grounds have been raised – paragraph 4 of the Notice of Appeal, and Grounds 6 to 8 in the Supplementary Notice of Appeal.  They were not raised before the Court of First Instance.  This Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.  However, this Court has a discretion, which is not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13].  Taking into account the fact that the applicants were not legally represented at the court below and that they would not rely on new evidence to support such new grounds in this appeal, we are prepared to consider them in the interest of justice.  However, given our conclusions above, we will only consider them briefly.

The Board’s failure to consider the 2^nd applicant’s particular risk

34.  This ground is raised in the Notice of Appeal[18] prepared by the applicants.  It is not addressed in the skeleton argument prepared by their counsel.  We note that there is no evidence to show that the 2^nd applicant had ever been harmed or ill-treated in Pakistan, nor anything raised in the submissions of her legal representatives made to the Board and to this Court in relation to any particular risk which is not based on the primary facts relied on by the 1^st applicant.  We consider that the Board was entitled to take into account the fact that the 2^nd applicant has not advanced a separate and distinct claim from the 1^st applicant’s.  We are of the view that this new ground is not made out.

Ground 6 – The Board’s failure to determine whether the 1^st applicant would be tried in military court

35.  In the submissions to the Board by the Duty Lawyer for the applicants, it was stated that military courts tried civilians on terrorism and related charges.  It was further submitted that the 1^st applicant had been falsely charged with possession of a gun and ammunition in car, so there is a very high risk that he would find himself before a military court[19]. When the Board had already decided not to place any weight on the Firearms FIR (which will be further discussed below), we do not think that it is irrational for the Board not to assess the likelihood of the 1^st applicant being tried in the military court for the relevant FIR.  We also consider that the contention regarding the risk of the 1^st applicant being tried in the military court is speculative, as there is no supporting evidence to show the likelihood of such firearm related charges being tried in the military court in Pakistan.

36.  Ground 6 is not made out.

Ground 7 – The Board’s unreasonableness/irrationality in doubting the authenticity of the Firearms FIR

37.  The 1^st applicant claimed that a FIR was falsely filed against him on 17 December 2006.  It alleged that he was the driver of a car that was seen driving at high speed.  A 222 rifle was alleged to have been found near the applicant[20].  Mr Baker submitted that the Board was irrational and unreasonable in considering that it was not plausible that the Pakistani police made no attempt to arrest the 1^st applicant, assuming that the corrupt police officers would have tried to arrest the 1^st applicant[21].

38.  In deciding to give no weight to the Firearms FIR, the Board did not take into account only the fact that the police did not attempt to arrest the 1^st applicant pursuant to the FIR.  The Board also considered the following:

(1)  The 1^st applicant did not mention the existence of the Firearms FIR in his questionnaire and stated in his supplementary claim form that he did not know about the Firearms FIR until much later[22];

(2)  The Firearms FIR was only mentioned for the first time after the Director had given its decision on the 1^st applicant’s torture claim[23];

(3)  His explanation for the late submissions of the Firearms FIR is the difficulty in trying to get these sensitive documents from the authorities in Pakistan, while he was able to produce copies of other FIRs attached to his questionnaire.

39.  We take the view that the Board’s conclusion is not unreasonable or irrational.

40.  Ground 7 is not made out.

The Board’s unreasonable speculation as to how the extortionists would act and their geographical reach

41.  It was submitted that the Board was unreasonable/irrational in speculating and assuming how the extortionists would act and conduct themselves and the geographical extent of their reach/power, without reference to the COI.  The Board’s relevant findings were based on the following evidence:

(1)  The oral evidence of the 1^st applicant who said that the extortionists were quite famous in the village and also in the surrounding areas (but he did not claim that they operate elsewhere in the country)[24];

(2)  The newspaper reports produced by the 1^st applicant which show that Yasir Cheema and his associates extorted money from businesses in Sialkot, Daska, Sambrial, Bhopalwala, Pasrur, Gujranwala and the surrounding areas[25].  The reports also show that Yasir Cheema was the leader of an extortion gang which was responsible for killing many innocent people and that the Punjab government had offered a million rupee reward for his capture and that he was arrested by the Sialkot police after a tip off[26];

(3)  Police in Pakistan are organized on a provincial basis.  According to the COI[27], Deputy Superintendents of Police (“DSOs”) are assigned to districts and work directly to the superintendent who supervises the district;

(4)  After the filing of a FIR by the 1^st applicant’s family at Sambrial after the murder of Aman, one of the extortionists, Aslam was arrested and charged.

42.  Based on the above evidence, the Board found that the extortionists’ power or influence does not extend beyond the area around Sialkot[28], the two DSOs would be unlikely to have power or influence outside their police district even if they are related to the extortionists as claimed, and that any police involvement in the murder was limited to individual officers[29].  We do not think that such findings are irrational.

43.  Although we are not persuaded that the said findings of the Board in the preceding paragraph are irrational, this does not affect our conclusion on its lack of analysis and/or explanation on its finding on state protection in other areas in Pakistan, in light of the fact that the applicants did produce COI showing many defects in policing in Pakistan, and the failure of the Board in explaining the basis of its conclusion on state protection in this case while accepting that the 1^st applicant was at real risk of harm from the extortionists in Pakistan.

44.  In respect of the so-called “speculation” of the Board as to how the extortionists would act, we note that such inference was made in response to (1) the submissions of the 1^st applicant’s legal representative that the culture and traditions of Pakistan require family members to engage in reciprocal blood feuds[30], and (2) the 1^st applicant’s case that the objective of alleged death threat targeted at him was to secure the withdrawal of the complaint against the extortionists[31].  We have also considered the World News Report, which Mr Baker submitted in the course of the appeal hearing as being relevant also to Ground 8.  It does not in our view add anything material to this ground.  On all the evidence before the Board and us, we do not see that the inferences made by the Board are irrational or unreasonable.

45.  Ground 8 is not made out.

Conclusion and orders

46.  For the above reasons, we consider it appropriate to allow the 1^st and 2^nd applicant’s appeal on the Internal Relocation Grounds.  We also allow the 3^rd to 6^th applicants’ appeal on those same Internal Relocation Grounds and in addition the Separate Consideration Grounds.

47.  We set aside the order of the judge dated 31 May 2023 and grant leave to the applicants to apply for judicial review against the Board’s Decision on those grounds.

48.  As neither the Director nor the Board has actively resisted the appeal (and the Director has reasonably indicated his agreement to allow the 3^rd to 6^th applicants’ appeal), we make no order as to the costs of the appeal, save that the applicants’ own costs shall be taxed in accordance with the Legal Aid Regulations.

49.  We would suggest to the Director and the Board, (who have not taken any active step in this appeal) that, in order to achieve an early and economical resolution of the applicants’ non-refoulement claims, consideration may be given to whether their application for judicial review of the Board’s Decision ought to be uncontested (invoking the procedure in Practice Direction SL3 para 23(1)) so that their appeal may be remitted to the Board for fresh determination as soon as practicable.

[1]  [2023] HKCFI 1421.

[2]  §118.

[3]  §128.

[4]  Ibid.

[5]  §§137 & 144.

[6]  AlthoughthejudgestatedthattheapplicantsappearedbeforetheCourton7December2022 (Call-1 para 4), record shows that the 1^st to 4^th applicants attended the hearing and the 5^th to 6^th applicants were absent.

[7]  Which stands for “cruel, inhuman or degrading treatment or punishment”.

[8]  Not the murder FIR as clarified in footnote 12 in the skeleton argument.

[9]  Cited in §64 Board’s Decision.

[10]  §§138 & 144 Board’s Decision.

[11]  §118.

[12]  §3.I of the “Submissions for the Appellant” dated 24 May 2018.

[13]  §§102 & 122.

[14]  §118.

[15]     §130.

[16]  §132.

[17]  §128.

[18]  §4 thereof.

[19]  §7(VII)(IV).

[20]  §56 Board’s Decision.

[21]  §§38-40 skeleton argument.

[22]  §126 Board’s Decision, §52 Supplementary Claim Form.

[23]  §126 Board’s Decision.

[24]  §99 Board’s Decision.

[25]  §95 Board’s Decision.

[26]  §97 Board’s Decision.

[27]  See footnote 7 of Board’s Decision.

[28]  §99 Board’s Decision.

[29]  §§101-102 Board’s Decision.

[30]  §§105-107 Board’s Decision.

[31]  §§104-105 Board’s Decision.