MEHMOOD QAISAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3636/2019

[2025] HKCFI 1897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3636 of 2019

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.  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 5 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of (i) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 21 November 2019 (“the Board’s Decision”); (ii) the decision of the Director of Immigration (“the Director”) dated 4 July 2014; and (iii) the further decision of the Director dated 3 January 2017[1] (“the Director’s Decision”). The Board’s Decision affirmed the Director’s Decision, which rejected his non-refoulement claim on the ground of BOR2.

2.  In Form 86, the Applicant has mistakenly referred the Director as one of the proposed respondents and the Board as one of the interested parties, which I have corrected on my own motion.

Background

3.  The Applicant’s personal background, the incidents alleged to show that he would be tortured or killed in Pakistan, and the immigration and procedural history, etc. were set out in the Board’s Decision. It is not necessary for me to restate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[2]. The Board’s abbreviations and descriptions are adopted below unless otherwise indicated.

Discussion

4.  To begin with, neither of the Director’s decisions is open to challenge. It is well-established that the decision of an immigration officer is not a decision that is within the administrative structure susceptible to judicial review once an appeal to the Board is pursued by a claimant: see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc. It can be seen from the record as follows:

(1)  The Applicant’s claim for non-refoulement protection was assessed on all applicable grounds, including torture risk, BOR 3 risk, and persecution risk, as set out in the decision of the Director dated 4 July 2014. Having carefully assessed his claim, it was considered that it was not substantiated and a decision was made by the Director to reject it.

(2)  The Applicant did not file any appeal/ petition against such decision within the 14-day time period, nor submit any application for extension of time. The grounds considered in that decision were therefore considered to be finally determined.

(3)  The Applicant was invited, by letter dated 14 December 2016, to submit additional facts, if any, which he considered relevant to his non-refoulement claim on or before 28 December 2016, in case he had omitted any of them. The Applicant submitted a letter on that date. After studying all the additional facts provided by the Applicant, the Director considered that no further screening interview was required. On 3 January 2017, the Director decided that the Applicant had failed to substantiate his claim on the ground of BOR 2.

(4)  Such decision gave rise to the appeal before the Board on 23 July 2019. On 2 November 2019, by the Board’s Decision, the Director’s Decision was affirmed.

5.  With respect to the Board’s Decision, I am not remotely convinced that the Applicant’s intended challenge of it – based, in gist, on the grounds that there were lack of language assistance and legal representation, along with his alleged inability to understand English, and the Board’s failure to provide adequate reasoning for the decision, etc. – is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

6.  First, the Applicant had given evidence at the hearing before the Board through a Punjabi interpreter. If the Applicant’s complaint is that he has not been given language assistance at other stages of the proceedings, it is well-established that a claimant does not have an absolute right to free language assistance at all stages of the process. As he has chosen to come to Hong Kong, where the official languages are Chinese and English, he must accept and manage his own language disability. It could not have been the intention of any authority establishing that the principle of a high standard of fairness includes the provision of interpretation services whenever an applicant desired or required them (see Karamjit Singh, CACV 78/2018 (unreported, 2 August 2018)).

7.  Furthermore, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v. Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings (see Re Zafar Muazam, CACV 2/2018, (unreported, 23 March 2018), Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37).

8.  It is also evident, from the Board’s Decision, that the Applicant encountered no difficulties related to language or legal representation. The Applicant simply did not raise any complaints about the absence of language support or legal representation before the Board. The Applicant never complained, during the hearing, that he was not given a proper opportunity to respond, or that he had not been adequately informed of his rights of BOR 2 or did not fully understand them, etc.

9.  The Applicant also claims that it is impossible for him to comprehend the Board’s Decision. However, he has had ample time to seek assistance after submitting Form 86 and before this oral hearing. While he reserves the right to submit additional and/or amended grounds and documents in support of his leave application, he has not done so.

10.  In light of the overall context of the situation, it is clear that the Applicant did not suffer any prejudice from the lack of language assistance or legal representation.

11.  I have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard in view of the seriousness of the issues at hand (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). The Board was not satisfied, after reviewing all the evidence and applying the correct legal principles, that there was real risk to the Applicant’s right to life. The Board attached “no credence” at all to the Applicant’s claim that he had entered Hong Kong in search of international protection:

(1)  The Applicant’s claim was based on a dispute over seeing a girl in Pakistan. The Board found his evidence to be “vague” and “unsubstantiated”, and more importantly, it was almost completely at variance with his claim to the Director.

(2)  As observed by the Board, critically, the Applicant said that his problems ended in 2003, when he moved to Faisalabad to avoid further harm. The Applicant said that his shoulder was broken at that point (when he told the Director that it was in 2011), and thereafter he received only threats which were never acted upon.

(3)  According to the Board, the lack of harm for eight years demonstrated both the lack of real interest in him by Sonia’s (or Saima’s) family and that he had a viable internal alternative. It also demonstrated that the story he told the Director about his problems between 2008 and until he left Pakistan was not true and it fatally undermined his credibility.

12.  In the absence of any valid public law errors or grounds being shown, the above assessment was within the authority of the Board, and its role as the primary decision maker should not be usurped. The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

13.  I accordingly make an order that Form 86 be amended as described above and the Leave Application herein be 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