ANWAR FIAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 968/2020

[2025] HKCFI 5258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 968 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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 8 May 2020”.

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 22 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of five decisions, namely:-

(1)   Determination of Appeal/Petition with a Hearing issued by Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Dated 8 May 2020 (6 Pages in total);

(2)   Notice of Decision issued by the Immigration Department dated 21 November 2014 (24 Pages in total);

(3)   Notice of Further Decision issued by the Immigration Department dated 1 February 2017 (4 Pages in total);

(4)   Non-refoulement Claim Form issued by the Immigration Department dated 31 May 2014 (31 Pages in total); and

(5)   Record of Screening Interview issued by the Immigration Department dated 25 September 2014 (9 Pages in total).

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 8 May 2020 (“the Board’s Decision”) regarding the applicant’s petition against the further decision of the Director of Immigration (“the Director”) dated 1 February 2017 (“the Director’s Further Decision”).

3.  At the oral hearing before this court on 12 August 2025, the applicant confirmed that only the Board’s Decision should be the subject of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000968_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant did not face any real risk of arbitrary deprivation of life under BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”) if refouled to Pakistan.  Hence, the Board dismissed the applicant’s petition against the Director’s Further Decision and confirmed the same.

5.  Previously, the applicant’s non-refoulement claim made on all the other applicable grounds under the USM, including Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4], was refused by the Director by way of his notice of decision dated 21 November 2014 (“the Director’s Decision”).  The applicant appealed against the Director’s Decision to the Board, which dismissed his appeal/petition by way of a decision dated 1 December 2016 (“the Board’s Previous Decision”).  Thus, the applicant’s claim for non-refoulement protection based on Torture Risk, BOR 3 Risk and Persecution Risk had already been disposed of by the Board’s Previous Decision and it was not necessary for the Board to re-assess the applicant’s claim on these three grounds in the Board’s Decision.

Amendments

6.  In Form 86, the applicant named both “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and the Director as both the putative respondents and the putative interested parties.

7.  As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent and the Director should be the putative interested party.

8.  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 party at all. 

9.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to amend the name of the putative interested party to “Director of Immigration”, and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 8 May 2020”.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed or seriously harmed by members of Pakistan Muslim League –Quaid-e-Azam (“PMLQ”) and the government for a criminal charge of murder.  The applicant was appointed as a vice-president of Pakistan Muslim League – Nawaz (“PMLN”) in his hometown in 2000.  A false case was filed against him for firing the gunshots killing the PMLQ supporters in an unrest following a rally organized by PMLN in 2002.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 12 August 2025.

13.  At the hearing, apart from confirming that the Board’s Decision was the only subject matter of the Leave Application, the applicant confirmed that he would rely on the grounds mentioned in his 10-page supporting affirmation dated 22 May 2020.  However, when this court asked the applicant to elaborate on the grounds, he only said that the party had beaten and tortured him and his mother had a heart attack and passed away.

Grounds for judicial review

14.  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).

15.  The grounds that were asserted in the applicant’s supporting affirmation are summarised as follows:-

1.   He should be entitled to appeal against all the decisions made against him by the Director and the Board, as he could not have appealed against the decisions of the Director without first exhausting all means of appeal, namely, by first appealing to the Board.

2.   The authorities have not taken his unique situation into account fairly and sequentially.

3.   The Director rejected his BOR 2 risk claim without any screening interview.

4.   He was not represented after the Director’s Decision, as the Duty Lawyer Service was of the view that there were no grounds for appeal.  He had to file the notice of appeal without any legal or language assistance.

5.   The decisions made by the authorities in his non-refoulement claim should be deemed invalid due to procedural impropriety.

6.   It was insensitive and possibly unlawful for the adjudicator to allow the determination to be written in a language that he did not understand and did not provide him with professional help (certified interpreter/translator) in order to help him understand the reasons for rejecting his claim.

7.   Without knowing the reasons for the rejection of his claim, he was deprived of the opportunity to make a full application for leave to apply for judicial review.

8.   He was still facing the fear of being convicted of the murder case upon reach to his home country, but the adjudicator totally refused his fear without explaining it.

9.   He requested that the determination of the appeal/petition to be translated or interpreted to him for his better understanding, upon which he requested to have reasonable and sufficient time to provide further written grounds.

16.  The contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

17.  First of all, some of the above grounds were directed at the Director.  The applicant had confirmed that the Leave Application was only in respect of the Board’s Decision.  Further, as the Director’s Decision and the Director’s Further Decision were superseded by the Board’s Previous Decision and the Board’s Decision respectively and are no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s decisions cannot be the subject matters of the Leave Application. 

18.  Thus, ground 1 and ground 3 can be disposed of without further discussion.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

19.  Ground 2, namely that the authorities have not taken his unique situation into account fairly and sequentially, and ground 5, namely that the decisions made by the authorities in his non-refoulement claim should be deemed invalid due to procedural impropriety, were general accusations without specificity.  The applicant did not explain what unique situation of his was not taken into account, and how his situation was not considered fairly and sequentially.  It does not help the applicant to simply mention general “key words” like procedural impropriety either.

20.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the aforesaid accusations in grounds 2 and 5 could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

21.  Grounds 4, 6, 7 and 9 are the applicant’s complaints about the lack of legal and language assistance.

22.  However, a lawyer from the Duty Lawyer Service did assist the applicant in his proceedings before the Director. 

23.  The Court of Appeal has repeatedly emphasised 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.

24.  As to his assertion regarding the lack of language assistance, this court notes 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.  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). 

25.  Lastly, the applicant asserted in ground 8 that he was still facing the fear of being convicted of the murder case upon reach to his home country, but the adjudicator totally refused his fear without explaining it.

26.  This accusation is totally unfounded.  As can be seen from paragraphs 19-20 of the Board’s Decision, the Board had provided a detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant did not face any real risk of arbitrary deprivation of life under BOR 2 Risk if refouled to Pakistan.

27.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

28.  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).

29.  In assessing the appeal by the applicant, the Board held an oral hearing on 20 March 2020.  The applicant was present and was given the chance to present his case to the Board in person. 

30.  This court notes from the Board’s Decision that the applicant did not respond to Director’s invitation to submit additional facts, if any, which he considered relevant to his claim, including a claim on the ground of risk of arbitrary deprivation of life under BOR 2.

31.  At the Board’s hearing, the applicant refused to answer any questions in relation to his previous non-refoulement claim.  He only answered questions in relation to the alleged murder charge against him.

32.  The Board found that the applicant relied heavily on the hearsay evidence from his mother.  More significantly, it was the Board’s finding that the applicant failed to provide any documentary evidence to show the existence of a murder charge, a warrant of arrest and the court summons in relation to the alleged murder charge against him.

33.  The Board also found the applicant’s claims that he had been located by PMLQ members in different locations to be either hearsay or the applicant’s own speculation without any documentary evidence in support.

34.  Hence, the Board concluded that the applicant did not face a real risk of arbitrary deprivation of life under BOR 2 Risk if refouled to Pakistan.

35.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

36.  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 BOR 2 Risk 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. 

37.  For the sake of completeness, this court noticed that the adjudicator of the Board, Mr SIN Ming-hei, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of his capacity. 

38.  Mr SIN was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him.  He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

39.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

40.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr SIN was indeed a member of the Board and did have the power to determine the applicant’s petition.  It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.

41.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

42.  For reasons aforesaid, the Leave Application is 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

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