RIZWAN ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3361/2019

[2025] HKCFI 3865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3361 OF 2019

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

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 4 November 2019”. 

2.  The applicant’s application for leave to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 4 November 2019 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 dated 30 July 2018 (18 pages in total)”; and

(2)  “Determination of Appeal/Petition with a Hearing issued by the Torture Claims Appeal Board dated 4 November 2019 (9 pages in total)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 4 November 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 July 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/HCAL003361_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judicial review in respect of the Director’s Decision, as he agreed with this court that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali, [2018] HKCA 549).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 in Hong Kong 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 1^st proposed respondent and “The Director of Immigration” as the 2^nd 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 1^st putative interested party and “Immigration Department” as the 2^nd 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 he believed he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) if returned to Pakistan, as he was an active member and supporter of Pakistan Muslim League (Quaid e Azam Group).

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 is 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, the applicant 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 as his legal representative.

(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. The Board was insensitive and possibly unlawful to allow the Decision 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 to understand the reasons for rejecting his claim.

(4)  The Board has made biased judgment or a misjudgment and it was ridiculous for the Board to totally dismiss the possibility of a life threatening situation simply because he managed to stay alive.

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, a lawyer from the Duty Lawyer Service did assist the applicant 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, and he was deprived of the opportunity to make a full application for leave to apply for judicial review 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 the Board has made biased judgment or a misjudgment and it was ridiculous for the Board to totally dismiss the possibility of a life threatening situation simply because he managed to stay alive.

22.  However, the Board’s finding that there was no basis as to the applicant’s fear was made after careful consideration of the applicant’s case. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

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

24.  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).

25.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

26.  In assessing the appeal by the applicant, the Board held an oral hearing on 23 September 2019 and the applicant was present. Thus, the applicant was given a chance to present his case to the Board in person.

27.  As can be seen from the Board’s Decision, the Board gave detailed reasons for concluding that members of PML(N) were not serious in carrying out their threats to kill the applicant. The treatment that the applicant had received before he left Pakistan did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance. Thus, the Board found that there was no basis for the applicant’s fear and rejected the applicant’s claims.

28.  Moreover, the Board had referred to objective country of origin information (“COI”) for Pakistan in assessing the availability of state protection to the applicant. While noting that it was not uncommon for the police in Pakistan to need to be bribed when they discharged their duties, the Board also found objective COI showing that the Pakistani government had taken practical steps to improve the effectiveness of the police and to curb their corruptive practices.

29.  In fact, the applicant had never reported the incidents he encountered in Pakistan to the police. It was purely the applicant’s speculation that he would not receive the assistance he sought had he reported the matter to the police. The Board therefore found that reasonable state protection was available to the applicant should he need it.

30.  As to internal relocation, the Board found from the applicant’s own evidence that he had on two occasions moved to stay in a place other than his home city to successfully avoid the members of PML(N). The Board hence found that even if the members of PML(N) were influential and powerful, it was localized in the area of the applicant’s home city. There was no evidence to show that these people had the necessary resource to locate the applicant in such a vast country.

31.  The Board concluded that it would be viable for the applicant as a healthy mature adult with 11 years of education and ample work experience to relocate to another city in Pakistan to avoid the alleged risk he feared.

32.  As aforesaid, the finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong in the way the Board reached its conclusion.

33.  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.

34.  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

35.  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

Form CALL-1