|
HCAL 3362/2019
[2025] HKCFI 3867
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3362 OF 2019
|
BETWEEN
|
| |
Ahmad Nadeem |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 October 2019”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 12 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) “Notice of Decision issued by the Immigration Department”, but the date of the decision was not specified; and
(2) “Determination of Appeal/Petition with a Hearing issued by the Torture Claims Appeal Board dated 21 October 2019 (26 pages in total)”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 21 October 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 January 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003362_2019_files/the_Board's_Decision.pdf
3. At the oral hearing before this court on 10 June 2025, the applicant confirmed with this court that it was not necessary for him to apply for judicial review in respect of the Director’s Decision, as he agreed with this court that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549).
4. Thus, the Leave Application is concerning the Board’s Decision only.
5. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
6. The applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the 1st proposed respondent and “The Director of Immigration” as the 2nd proposed respondent in Form 86. However, as confirmed by the applicant at the oral hearing, only the Board’s Decision should be considered in the Leave Application. Thus, the putative respondent should just be the Board.
7. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
8. Further, the applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as the 1st putative interested party and “Immigration Department” as the 2nd putative interested party in Form 86, when only the Director should be so named.
9. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.
10. As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision. Thus, on this court’s own motion, it is so amended.
The applicant’s case
11. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
12. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would face a risk of being coerced into life threatening activities by supporters of the Tehrik-i-Taliban Pakistan (“TTP”). He also feared that people from TTP would kill him as he had escaped from their training camp in around mid to late 2007.
Oral hearing
13. The applicant requested for an oral hearing of the Leave Application. His case was heard on 10 June 2025.
14. At the hearing, apart from confirming that the Leave Application was only in respect of the Board’s Decision, the applicant also confirmed that he would rely on the grounds for the intended judicial review that were asserted in his affirmation dated 12 November 2019 and he had nothing further to add.
Grounds for judicial review
15. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
16. The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 12 November 2019, he advanced some grounds for his intended judicial review, which can be summarized as follows:-
(1) He believed that he was entitled to appeal against both the Director’s Decision despite being out of time and the Board’s Decision, as he could not have appealed against the Director’s Decision without first exhausting all means of appeal, namely, by appealing to the Board first.
(2) Lack of legal assistance – Since the Director’s Decision was issued, the Duty Lawyer Service no longer represented him.
(3) Lack of language assistance – He was without language assistance and the Board’s Decision had never been read or translated to him in his first language. Thus, he was not advised properly of the reasons for the rejection of his claim.
(4) There was wrongful case management on the part of the Board. The fact that he elected not to give any answers on the day of the oral hearing did not mean that the adjudicator was free to put words in his mouth or to make baseless assumptions without giving him an opportunity to explain. The applicant believed that the Board was biased against him because the Board challenged his credibility.
Discussion
17. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision. The applicant also confirmed at the oral hearing that the Leave Application is in respect of the Board’s Decision only. Thus, the first ground as summarized above is no longer relevant.
18. As to the allegation that there was a lack of legal assistance, the applicant confirmed in the affirmation that a lawyer from the Duty Lawyer Service did assist him until the Director’s Decision was issued. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (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). Thus, there is no substance in this allegation.
19. Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegations that the Board’s Decision was never read or translated to him in his first language, and he could not provide full grounds for an appeal without being advised properly of the reasons for the rejection of his claim simply cannot help him.
20. Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.
21. The applicant further complained that there was wrongful case management on the part of the Board. The fact that he elected not to give any answers on the day of the oral hearing did not mean that the adjudicator was free to put words in his mouth or to make baseless assumptions without giving him an opportunity to explain.
22. However, this court noted from the Board’s Decision that the Board had clearly asked the applicant whether he was willing to answer questions from the Board, which would enable the Board to clarify matters upon which it had doubts. The applicant stated that he would answer questions but then immediately queried whether he had to answer such questions and stated that he was not willing to do so after the Board had again explained the advantage to him of answering questions from the Board.
23. The Board was aware that the applicant had perhaps not turned his mind to this matter prior to the hearing. The Board allowed him a short adjournment to fully consider his position. When the hearing resumed the applicant confirmed that he did not wish to answer questions from the Board but wished to rely on what he had stated previously and confirmed again that he understood the implications of this. Finally, the applicant confirmed that he had nothing further to say and the hearing was concluded.
24. Thus, it was the applicant who deliberately elected not to answer the Board’s questions and confirmed to the Board that he had nothing further to say. The Board could only proceed to determine the applicant’s claim based on all the evidence before it, without the benefit of hearing the applicant’s oral evidence. It was utterly untrue that the Board did not give him an opportunity to explain, nor was the Board being biased against him.
25. The Board’s conclusion was based on its finding of facts from all the evidence before it. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
26. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
27. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
28. In assessing the appeal by the applicant, the Board held an oral hearing on 24 September 2019. The applicant was present and was given the chance to present his case to the Board in person. As mentioned, the applicant elected not to answer any questions from the Board.
29. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion. In the light of the applicant’s refusal to give evidence and answer questions from the Board, the applicant had failed to prove his claim to the required low standard.
30. The Board was mindful that there was actually no need to consider the issues of state protection or the reasonableness of internal relocation as the applicant’s failed to substantiate there was a real or substantial risk he had faced or would be facing upon his return to Pakistan. Nevertheless, the Board explicitly mentioned that had the Board been called upon to consider these issues, it would have found that state protection would be available to the applicant as would the reasonable option of relocation upon his return to Pakistan.
31. As aforesaid, the finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion.
32. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
33. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence leave must be refused.
Conclusion
34. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of September 2025
| |
( Irene LEE )
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 2 September 2025
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10031/18/1/304/P1939
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2993/17
(formerly RBCZ/3001146/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|