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

HCAL 1028/2020

[2025] HKCFI 3510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1028 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 28 May 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 15 May 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 28 June 2018. The Applicant named both the TCAB and the DI as putative respondents, and both of their decisions as the subjects of challenge. I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI instead as the putative interested party to this application. Only the TCAB Decision would be regarded as the administrative decision sought to be impugned.

3.  The Applicant is a Pakistani national. He claimed to be a committee member of “Suni”, an Islamic sect (taken to mean “Sunni”). His non-refoulement claim was based on an alleged risk of being harmed or killed by several figures of another Islamic sect called Wahhabi.

4.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application. In gist, he complained that the TCAB had failed to provide (1) legal assistance to him for the preparation of his appeal/petition to the TCAB and at the TCAB hearing;(2) language assistance to him.

5.  The Applicant elaborated the second ground in his supporting affirmation that the TCAB Decision was written in English – there was no translation of its text to his primary language to help him understand the reasons for rejecting his claim. In the oral hearing before me, the Applicant confirmed that he no longer maintains this particular challenge on the lack of translation of the TCAB Decision. However, he maintains the first complaint about lack of legal assistance.

6.  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.

7.  In the oral hearing before me, the Applicant only stated that he wanted a review of his case. He was unable to point out what prejudice he had suffered as a result of the lack of legal representation at the TCAB stage. Given the Applicant had the benefit of legal representation in the tier-one process handled by the DI, including the submission of a non-refoulement claim form and the participation in a screening interview, I do not see the ground being made out in the absence of any specific suggestion of prejudice.

8.  I have considered other general allegations in the Applicant’s affirmation (such as the TCAB being biased and making assumptions). However, all those allegations were without particulars or elaborations. I am unable to see the merits of such allegations and how they would be reasonably arguable.

9.  I have also reviewed the substance of 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 did not regard the major elements of the Applicant’s factual claim as credible. The TCAB found that the Applicant had failed to explain why he could bear the risk of being attacked by people of Wahhabi or being arrested by the police, his source of fear, when he went back to Pakistan from Macao on one occasion before his non-refoulement claim was submitted in Hong Kong. The TCAB was also satisfied that there was reasonable protection by the Pakistani authorities to the Applicant after its consideration of the available country-of-origin information. 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 returns to his home country. I am unable to detect any error on the TCAB’s part.

10.  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).

11.  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