MD SOAVE v. TORTURE CLAIMS APPEAL BOARD

HCAL 2123/2020

[2025] HKCFI 5853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2123 OF 2020

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 2 September 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 23 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “Determination of Appeal/Petition with a Hearing issued by Torture Claims Appeal Board dated 2 September 2020 (18 pages in total)”; and

(2)  “Notice of Decision issued by the Immigration Department dated 15 November 2018 (21 Pages in total)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 2 September 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 November 2018 (“the Director’s Decision”).

3.  Thus, it is clear that the first decision mentioned by the applicant in Form 86 is the Board’s Decision and the second is the Director’s Decision.

4.  At the oral hearing before this court on 4 November 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed that only the Board’s Decision should be the subject matter 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/HCAL002123_2020_files/the_Board's_Decision.pdf

5.  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] under the Unified Screening Mechanism (“the USM”). The applicant had previously made a torture claim, which was rejected by the Director on 28 February 2013. He did not file an appeal against that decision. Thus, the applicant’s claim for non-refoulement protection based on Torture Risk[4] had already been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.

6.  The Board found that the applicant’s claim failed on all the aforementioned applicable grounds under the USM. Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

7.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” and the Director as the putative respondents, and “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” and “Immigration Department” as the putative interested parties.

8.  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.

9.  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.

10.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 2 September 2020”.

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 if refouled to India, he would be at risk of being harmed or killed by his creditor Arshad, his father and his people as the applicant had defaulted in repaying his loan from Arshad and refused to join Arshad’s drug business.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 4 November 2025.

14.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in his 8-page supporting affirmation dated 23 October 2020. However, when this court asked the applicant to elaborate on the grounds, he only repeated that he was sent to Hong Kong to do some illegal job against his will because he could not repay his loan. He further mentioned that he needed to stay in Hong Kong to take care of his wife and daughter here as they had some health issues.

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 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.  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.

4.  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.

5.  The fact that he elected not to give answers at the oral hearing did not mean the Adjudicator could make baseless assumptions without giving him an opportunity to explain, especially when his credibility was challenged.

6.  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. He reserved the right to submit further evidence either orally or in writing after the Board’s Decision was read to him in his first language.

7.  Wikipedia could not be considered as part of COI[5].

8.  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.

17.  The contents as stated above were 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.

18.  At the oral hearing, apart from repeating the basis of his claims, the applicant mentioned that he needed to stay in Hong Kong to take care of his family.

Discussion

19.  First of all, ground 1 relates to the applicant’s intended judicial review against the Director’s Decision. The applicant had confirmed that the Leave Application was only in respect of the Board’s Decision. Thus, ground 1 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.

20.  Ground 2, namely that the authorities have not taken his unique situation into account fairly and sequentially, is just a general accusation without any specificity. The applicant did not explain what unique situation of his that was not taken into account, and how his situation was not considered fairly and sequentially.

21.  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, general accusations cannot 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.

22.  Grounds 3, 4, 6 and 8 are the applicant’s complaints about the lack of legal and language assistance.

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

24.  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.

25.  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).

26.  The applicant asserted in ground 5 that he elected not to give answers at the oral hearing before the Board and it did not mean the Adjudicator could make baseless assumptions without giving him an opportunity to explain, especially when his credibility was challenged.

27.  This court notes that the applicant did not elect not to give oral evidence at the hearing before the Board. On the contrary, the applicant confirmed before the Board the truthfulness of the statements given in his Supplementary Claim Form and the interview held on 8 November 2018, and the applicant was assisted by a duty lawyer and an interpreter on both occasions.

28.  Nevertheless, the applicant’s credibility was indeed called into question. The Board in fact laid out in paragraphs 68 to 74 the various aspects of the applicant’s claims which were found to be implausible and unconvincing. Based on these findings, the Board rejected the applicant’s evidence that he had been subjected to violence or threats of violence from Arshad, his father or his followers. The Board also rejected his evidence that he was forced to carry drugs to Hong Kong by these people.

29.  In any event, if the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. Thus, ground 5 is not only untrue but also unfounded.

30.  Lastly, the applicant asserted in ground 7 that Wikipedia could not be considered as part of COI. He did not state which piece of COI the Board relied on was information from Wikipedia, nor why such information should not be considered.

31.  Contrary to the applicant’s assertion, this court finds that the COI that the Board referred to in the Board’s Decision was fully referenced from reliable sources. Thus, the accusation in ground 7 is totally unfounded.

32.  The applicant’s claim that he needs to stay in Hong Kong to take care of his wife and daughter is not a ground to challenge the Board’s Decision. Family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10).

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

34.  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).

35.  In assessing the appeal by the applicant, the Board held an oral hearing on 19 May 2020. The applicant was present and was given the chance to present his case to the Board in person.

36.  As aforementioned, this court notes from the Board’s Decision that the Board had given detailed reasons as to why it rejected the applicant’s claims which formed the basis of his claim for non-refoulement protection.

37.  Given its findings, the Board concluded that the applicant did not face a real risk of torture or ill-treatment under BOR 3 or arbitrary deprivation of life under BOR 2 Risk if refouled to India. There was no accepted evidence that the applicant’s claim was linked to a Convention ground and the applicant had no well-founded fear of persecution for a Convention reason.

38.  Further, the Board found from COI that the applicant could seek assistance from the police stations, courts or other authorities if it was necessary. He could also report to higher authorities against police misconduct, if any.

39.  Although assessment of internal relocation was not necessary when the applicant did not have a well-founded fear of persecution in his country, the Board nevertheless considered that it was not unduly harsh for the applicant, who had experience in trading mobile phones and accessories, to relocate to other big cities, if he faced any problem when refouled.

40.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

41.  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.

42.  For the sake of completeness, this court noticed that the adjudicator of the Board, Miss Kennis Tai, 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 her capacity.

43.  Miss Tai was a member of the Board and she was determining the applicant’s petition in her capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to her. She 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.

44.  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.

45.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Miss Tai 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 herself as an adjudicator of the Non-refoulement Claims Petition Office.

46.  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

47.  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