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HCAL 542/2020
[2025] HKCFI 4437
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 542 OF 2020
BETWEEN
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Akhtar Tauqeer |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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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. 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 29 January 2020 and filed on 7 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 January 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000542_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not substantiated on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board refused the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 5 December 2018 (“the Director’s Decision”).
3. Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed.
4. The applicant made a torture claim previously on 2 January 2009, which was rejected by the Director on 16 August 2013. The applicant did not file an appeal against the decision of the Director within the statutory time limit. Thus, the Torture Risk of the applicant had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk again.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because he would be at risk of being seriously harmed in Pakistan by the family of the woman called Saima, with whom his elder brother had eloped. Saima’s father was a property dealer and a close friend of a man who was a Minister of the PPP political party in their home area.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 July 2025.
8. At the hearing, the applicant confirmed that he would rely on the grounds for judicial review asserted in his second affirmation filed on 27 June 2025. He did not elaborate on the grounds as he confirmed that everything was the same. However, he added that he was trying to contact his friend in Pakistan and his problem in Pakistan could be resolved later but not now.
Grounds for judicial review
9. 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).
10. The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 7 April 2020. He only stated in the supporting affirmation that it was his application for leave to apply for judicial review against the decision of the Board as well as the Director.
11. In the second affirmation filed on 27 June 2025, the applicant attached a written submission, in which the applicant asserted some grounds for his intended judicial review. The contents of the written submission are reproduced as follows:-
“1: I am the Applicant in this case proceedings. HCAL 542 of 2020 I am a Non-refoulement claimants. I am write this written submission in support of my application for Leave to Apply for Judicial Review .
2: I am disagree with the decision made by the Director of Immigration as well as the adjudicator of Torture Claims Appeal Board. I do not think my case has been determined fairly.
3: Without knowing through how case was determined, it is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.
4: First and foremost, I was never provided with proper legal and language assistance. With my limitation in terms of resources, funding and language capabilities, it has been burden some for a Non-refoulement claimants like me to appeal against the decision. The determination of Appeal /petition has been never read to me on my own language, and I believe such failures in providing proper assistance to Non-refoulement claimants is procedurally unfair.
5: The Respondent’s is in breach of procedural fairness in the following parts:
(A) The Respondent’s had unlawfully fettered his discretion by refused my appeal on the grounds that they did not satisfy the requirements.
(B) The Adjudicator acted in a procedurally unfairness in dealing with my appeal ;
(C) The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.
(D) The Respondent’s failed to meet the greater care and duty owed to a self-Represented claimants.
6: The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposal of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.”
Discussion
12. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.
13. Paragraph 1 in the grounds is just the applicant’s self-introduction. It is not a ground at all.
14. The grounds as contained in paragraphs 2, 3 and 5 are all very general without any specificity. The applicant failed to identify how the Board had determined his claim unfairly, how the mechanism was improper and unfair, how the Board had unlawfully fettered its discretion, what was procedurally unfair to him, how the Board failed to meet the greater care and duty owed to a self-represented claimant and why the Board’s Decision was unreasonable or irrational.
15. 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 grounds 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.
16. Paragraph 4 concerns the lack of legal assistance and language assistance. However, a lawyer from the Duty Lawyer Service did assist the applicant to complete his Supplementary Claim Form, which he lodged with the Director on 9 November 2018.
17. 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.
18. Likewise, it is trite that the high standards of fairness required by law would not entail an 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 he did not know how his case was determined and hence it was burdensome for him to appeal against the decision and that no one read the determination of the appeal/petition to him in his own language simply cannot help him. 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.
19. In paragraph 6 of the grounds, the applicant complained that the quick disposal of non-refoulement cases is discriminatory. However, it is utterly untrue that the Board disposed of his case quickly and was discriminatory towards him. The oral hearing was held on 4 November 2019 and the Board gave the Board’s Decision on 15 January 2020. It means that the Board took more than 2 months to consider the applicant’s case, which can hardly be regarded as quick disposal. The Board in the Board’s Decision gave very detailed discussions and analysis of the applicant’s case, which shows that the Board did consider the applicant’s case very carefully and thoroughly. There is simply nothing to show that the Board was discriminatory towards the applicant.
20. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
21. 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).
22. Thus, despite that the applicant has failed to establish any valid ground as aforesaid, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
23. In assessing the applicant’s petition, the Board held an oral hearing on 4 November 2019 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.
24. In fact, the Board accepted the applicant’s evidence about what occurred to him in Pakistan as more than likely and a mostly reliable account of events that had actually occurred. Thus, the Board was prepared to accept his evidence about what occurred to him and his family in Pakistan because of his brother’s relationship with a young woman from another caste.
25. The Board even accepted that there was a small though nonetheless real risk that the applicant would suffer serious physical mistreatment, which could constitute cruel, inhuman or degrading treatment or punishment (“CIDTP”) under BOR 3 Risk, from, by or on behalf of Saima’s family and/or their agents if he returned to his home area in Gujrat or Jhelum.
26. However, the Board found internal relocation both viable and reasonable for the applicant to avoid the risk from Saima’s family. The Board did not accept the applicant’s claim that Saima’s family’s connection to the PPP and local political identities connected to the PPP in the Gujrat area would mean that he would be located by them wherever he was in Pakistan. The applicant had not been wanted by the Pakistani authorities but only by a few people of the almost 200 million people in Pakistan. Neither Saima’s father nor her brothers or other family members were themselves a member of government or police force. It had been over 12 years since Saima and the applicant’s brother eloped, and over 11 years since the applicant left Pakistan. Thus, the Board considered that the chance or risk of the applicant being located by Saima’s family or their agents in an area outside Gujrat or Jhelum was remote and far-fetched.
27. The Board also noted that the PPP political party lost power in Pakistan in 2008 and the party appeared to have little influence and power in 2020. Moreover, having regard to the passage of time, the lack of formal state-interest in the applicant and the massive size and population of Pakistan, the Board did not consider that there was a real risk that the applicant’s presence in a city or town outside his home area would come to the attention of Saima’s family and/or their agents.
28. The Board also considered that the applicant, as a healthy man who has the support of his family and a demonstrated ability to relocate to an urban metropolis like Hong Kong, could reasonably relocate to a city like Karachi or Hyderabad upon his return to Pakistan.
29. The Board found that the applicant’s risk did not fall within the definition of Persecution Risk. The reasons for Saima’s family to harm the applicant were purely personal reasons of revenge and retribution, and not because of his race, religion, nationality, political opinion or membership of a particular social group.
30. The Board was of the view that the Pakistani government had taken reasonable measures to protect the lives and safety of its citizens, and that a reasonable system of state protection was available to the applicant in the event he sought assistance and protection from the harm he feared from Saima’s family or their agents.
31. Further, the Board also found no grounds to believe that the applicant faced a real risk of being arbitrarily deprived of his life under BOR 2 Risk should he return to Pakistan and relocate to another area than his home area.
32. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection.
33. 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 or unreasonable in the way the Board reached its conclusion.
34. 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.
35. 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
36. For reasons aforesaid, the Leave Application is dismissed.
Dated the 23rdday of September 2025
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( Irene LEE ) |
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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 the applicant’s solicitors must: |
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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)). |
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Sent/Handed to the applicant/the applicant’s solicitors
on: 23 September 2025
Applicant’s ref. no:
Nil |
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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:
23 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14910/18/12/267/P2980
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4496/18
(formerly RBCZ 2001103/14)
QA T/C 706/09
(formerly RBCZ 284/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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