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

HCAL 741/2020

[2025] HKCFI 3511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 741 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.  The Applicant’s Form 86 be amended to (a) name the TCAB as putative respondent, and (b) to name the DI as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 22 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 30 March 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 16 April 2018. The Applicant named both the TCAB and the DI as both putative respondents and putative interested parties. I amended the Form 86 on my own motion to name the TCAB as the only putative respondent and the DI as the putative interested party to this application.

3.  The Applicant is a Pakistani national. He claimed to be a Sunni Muslim. The Applicant’s non-refoulement claim was based on an alleged risk of being harmed or killed by several figures of Shia Muslims who were associated with a political party called “PML(N)”.

4.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application. In gist, firstly, he complained that he was not provided with a legal representative for the preparation of his appeal/petition to the TCAB and at the TCAB hearing. In the oral hearing before this Court, the Applicant said he wished to maintain this ground.

5.  Secondly, he said in the affirmation that the TCAB had failed to provide language assistance to him. In the oral hearing before this Court, the Applicant confirmed that he no longer maintains a challenge concerning the TCAB Decision being written in English. The Applicant also confirmed that he had the service of an interpreter during the TCAB hearing.

6.  Thirdly, the Applicant stressed the fact that he has a medical condition and would not receive treatment in Pakistan if he is to return there. The Applicant said during the oral hearing before this Court that the medical condition was mentioned to the TCAB but not treated seriously. He further said he had to attend medical appointments in Hong Kong once every 5 months, and he would tend to forget things because of the medical condition. On my enquiry, he confirmed that he was fit to communicate with this Court.

7.  The two remaining grounds can be shortly disposed of.

8.  On the ground concerning legal assistance, the Court of Appeal has repeatedly held that the high standard of fairness laid down in authorities like Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 and FB & Ors v Director of Immigration & Anor [2009] 2 HKLRD 346 does not require 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.

9.  The Applicant failed to show how his case would be prejudiced by the lack of legal representation. His primary materials, including his non-refoulement claim form and the answers in the DI’s screening interview, were provided to the DI at a time he was under legal representation. In the TCAB hearing, the Applicant elected to adopt, amongst others, the information in his non-refoulement claim form and the screening interview as supporting evidence of his claim (paragraph 8 of the TCAB Decision). Although the Applicant was not legally represented before the TCAB, he was able to give answers to the TCAB’s queries and make representation in the TCAB hearing with the assistance of an interpreter. The Applicant suffered no real prejudice due to a lack of legal assistance in preparing for the appeal and during the hearing before the TCAB.

10.  In relation to the Applicant’s medical condition, the TCAB specifically considered and addressed it at paragraphs 50-52 of the TCAB Decision. The same medical condition was also reported to the DI for his attention at the tier-one process (paragraph 7.12 of the DI’s decision).

11.  The TCAB took note of the medical records from the Hong Kong Hospital Authority submitted by the Applicant and accepted that he had the relevant medical condition, but found that it did not support or advance his claim of a real risk of violation of his right under Article 3 of the Hong Kong Bill of Rights (“BOR”) should he return to Pakistan. The TCAB also found that the Applicant had failed to provide sufficient evidence to satisfy the TCAB that his medical condition had attained a critical stage or that he would have no prospect of seeking medical care in Pakistan. While his ongoing medical treatment would be required and the quality of available medical care in Pakistan might be less favourable than those he has been receiving in Hong Kong, it was not accepted that he would be subjected to a real risk of being arbitrarily deprived of his life contrary to Article 2 of the BOR. The TCAB also noted that the Applicant was able to access to medical treatment for his medical condition for around 2 to 3 years in Pakistan before he came to Hong Kong.

12.  The TCAB then went on to consider relevant authorities of the European Court of Human Rights, including D v United Kingdom (1997) 24 EHRR 423, and concluded that the Applicant’s medical condition did not appear to be an exceptional case justifying non-refoulement protection.

13.  In my judgment, the TCAB was not only alive to the Applicant’s medical condition, it also went into a detailed and sound analysis of how the condition might have affected the Applicant’s rights under the BOR if he returns to Pakistan. The TCAB certainly had borne in mind the Applicant’s condition when assessing his claim.

14.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings, and the TCAB had conducted an anxious scrutiny of the evidence. The TCAB accepted that the Applicant is a Sunni Muslim, and the Shia Muslim figures named by him and their associates had attacked and threatened him before. However, the TCAB rejected that it was by reason of religious belief or a dispute between political parties. The Applicant also conceded in the TCAB hearing that his fear was not due to the conflict between Shia and Sunni Muslims, but a personal reason of a mistaken belief that he was involved in an affair with the sister of one of the Shia Muslim figures. The TCAB also gave weight to the facts that Sunni Muslims are the majority of the population in Pakistan and “PML(N)” was no longer a ruling party at the time of the TCAB hearing. It was on those bases that the TCAB found the Applicant not subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he was to return to his home country. I am unable to detect any public law error on the TCAB’s part.

15.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

16.  The leave application to apply for judicial review is thus 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