NAZIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3602/2019

[2025] HKCFI 2090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3602 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

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

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 22 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 14 February 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  I have amended Form 86 on my own motion, adding the Board as the proposed respondent and the Director as the proposed interested party.

Background

3.  The Applicant’s personal background, his case and claim, the facts alleged by him to show that he would be harmed or killed in Pakistan, and the immigration and procedural history, etc. have been comprehensively set out in the Board’s Decision.  It is not necessary for me to reiterate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  I have considered the Board’s Decision, applying an enhanced standard as required by law, with rigorous examination and anxious scrutiny in view of the seriousness of the issues involved.  I am satisfied that the Board had correctly set out the law and key legal principles relating to the Grounds and the burden and standard of proof, identified the issues and observed a very high standard of fairness. 

5.  After considering the Applicant’s written representation, the NCF, the written record of the Interview conducted with him by an immigration officer, the Director’s Decision, the Notice of Appeal/Petition containing his grounds of appeal, and the COI from a variety of different sources, the Board refused to accept that (i) he would be harmed or killed by his cousin if he were to return to Pakistan; (ii) he faced risks throughout the country; (iii) he had experienced physical suffering of the requisite severity; (iv) or the state of Pakistan was unwilling to help him for a Convention reason (see §§42 of the Board’s Decision).

6.  The Board concluded, based on these findings, that the Applicant had failed to establish that there was Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk (see §§54, 60, 62-63, 65-66, 71, 76-78, 80, 86 of the Board’s Decision):

(1)   The Applicant’s ill-treatment (if any) did not involve any Convention reason.

(2)   According to the COI, several avenues for State protection appeared to be available to the Applicant.  Steps could be taken to address or remedy his problems.  The Board accordingly took the view that the Applicant would be sufficiently protected even if he were refouled to Pakistan.

(3)   The Applicant could not, based on the facts found, bring himself within any of the enumerated grounds or the definition of “refugee”.

(4)   The Board was not satisfied that the Applicant would personally be at risk of being deprived of life if refouled.

(5)   Taking all the evidence into consideration, the Applicant failed to substantiate that he would face torture or ill-treatment.  There was no substantial ground for believing that he would be at any “genuine risk” of being subjected to ill-treatment under BOR 3 if he were refouled.

(6)   The Cousins were considered by the Board as non-state actors.  The Applicant was able to use his passport and later departed the country through proper immigration channels, indicating that he was not targeted by the Pakistan government.

(7)   It was not the Applicant’s case that there was a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan.

(8)   The Cousins did not harass the Applicant once he moved away from his local area.

7.  It is well-established that the merits of a non-refoulement claim are matters for the primary decision-maker, and the Court should not intervene in the absence of any valid public law grounds being established (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).   

8.  Subsequent to the oral hearing, on 7 March 2025, the Applicant has filed, without leave, an affirmation containing the following matters:

(1)  “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 [sic] 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.”

(2)  “The Respondent is in breach of procedural fairness in the following parts:

(A)  The Respondent’s had unlawfully fettered his discretion by refused [sic] my appeal on the grounds that they did not satisfy the requirements.

(B)  The Adjudicator acted in a procedural 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 [sic] to meet the greater care and duty owed to a self-Represented claimants [sic].”

(3)  “The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposed of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.”

9.  First of all, it is evident that the Applicant has raised none of the above matters before, whether in Form 86 or his supporting affirmation.  On the contrary, the Applicant has not identified any supporting grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142).  He has not alleged that the Board committed any errors of law, nor that there were procedural issues related to fairness or irrationality in its decision (see Re Zunariyah [2018] HKCA 14 at §22).

10.  The Applicant has also not made any submissions regarding these newly raised matters during the oral hearing.

11.  In any event, I am not satisfied that the Applicant’s intended application for judicial review, based on any of the grounds mentioned above, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). 

12.  It can be seen from the record that the Applicant appeared before the Board with the assistance of an interpreter qualified in the Punjabi and English languages.  He had never raised any complaints regarding the lack of language support or legal representation before.

13.  It is well-established that a claimant does not have an absolute right to free language assistance at every stage of the proceedings.  Having chosen to come to Hong Kong, where the official languages are Chinese and English, he must accept and manage his language needs accordingly.  It could not have been the intention of any authority to establish the principle that a high standard of fairness includes the provision of interpretation services whenever an applicant desires or requires them (see Re Karamjit Singh, CACV 78/2018 (unreported, 2 August 2018)). 

14.  Neither does the high standard of fairness established in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 or FB v. Director of Immigration HCAL 51/2007 prescribe 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).

15.  With respect to the ‘general’ assertions that the Board breached procedural fairness, unlawfully fettered its discretion, or failed to meet its duty owed to a self-represented claimant, it is important to emphasize that these assertions are too vague to constitute any valid grounds for judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244).

16.  The Board made factual findings regarding the Applicant’s non-refoulement claim after the hearing, based on his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc.  As the primary decision‑maker, the Board was empowered to evaluate the evidence and determine the weight (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1).  The Applicant has failed to explain why and how the Board’s Decision was unreasonable or irrational in the public law sense.

17.  It is also unclear how the allegedly discriminatory actions of the authorities towards the non-refoulement claimants in general, if any, would specifically affect the Applicant and the Board’s Decision.

Conclusion

18.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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