MASOOD AHMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3258/2019

[2025] HKCFI 4343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3258 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 documents and Applicant being absent in open court;

1.  Leave for the applicants to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and the 4^th applicants’ application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are a family. The 1^st applicant is the father (“the father”), a national of Pakistan, the 2^nd applicant is the 1^st applicant’s wife (“the mother”), a national of Indonesia, the 3^rd applicant is the elder daughter (“the elder daughter”) and the 4^th applicant is the younger daughter (“the younger daughter”). The parents are illegal immigrants.

2.  The father entered illegally from China and was arrested in 2006. The mother worked as a domestic helper in January 1997. Her employment was terminated prematurely. She overstayed and was arrested. The daughters were born in Hong Kong respectively on 16 August 2009 (aged 16) and 26 October 2016 (aged 9).

3.  In 2012, the father, the mother and the elder daughter jointly lodged a torture claim with the Director, who refused their application. The appealed to the Board, which dismissed their appeal. Therefore, the Director did not consider their claim on Torture risk in their application for non-refoulement claim. The younger daughter had not applied for torture claim. Her application for non-refoulement jointly with other applicants will include Torture risk, which the Director had considered.

4.  Their non-refoulement claim was on the basis that, upon refouled to Pakistan, the father will be arrested by the police because he was framed as the murderer who had killed Shamshad. Also, he is in fear of being harmed or killed by Shamshad’s family. The mother claimed that if refouled, she will be harmed or killed by her ex-fiance, because she refused to lend him money, had broken the engagement with him and married with the father. The children’s claim relies on their parents’ facts in support of their claim. See the Board’s Decision through hyperlink for details https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003258_2019_files/the_Board's_Decision.pdf.

5.  By Notice of Decision dated 27 March 2018 (“the Director’s Decision”), the Director refused the applicants’ non-refoulement claim because their claim is unsubstantiated, state protection will be available and internal relocation is viable if they return to their respective countries with their children. They jointly appealed to Torture Claims Appeal Board (“the Board”).

6.  By Decision dated 3 June 2019 (“the Board’s Decision”), the Board dismissed their appeal.

7.  The applicants jointly issued Form 86 for leave to apply for judicial review of the Board’s Decision, the parents being the guardian ad litem for their children. They did not request a hearing. As they were legally represented before the Board, I will assume that the minor specific issues had been fairly presented to the Board for consideration. It is therefore unnecessary to call the applicants to appear the Court for a hearing. This Court will consider their application on the papers.

8.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The Director’s Decision

9.  As stated in paragraph 3, the Director considered the applicants’ claims in relation to the following risks; for the father, the mother and the elder daughter, except the Torture risk:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s Decision dated 27 March 2018, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated. Besides, state protection will be available and internal relocation is viable if they return to their country.

The Board’s Decision

11.  The applicants appealed the Director’s Decision to the Board. On 4 and 26 April 2019, the Board conducted an oral hearing for their appeal. The applicants were represented by a Duty Lawyer whereas the Director was represented by government counsel at the hearing. The father and the wife had given oral evidence and answered questions from their lawyer, the government counsel and the adjudicator.

12.  Having considered the evidence, the Board found the facts below and based upon which the Board dismissed the applicants’ appeal and confirmed the Director’s Decision.

(1)  The Board did not accept the father had ever been accused of attempted murder and murder, or wanted by the police. The Board did not accept that he and his family were ever threatened, beaten, harassed, tortured or otherwise harmed by Shamshad, Shamshad’s friends and family. The Board found that the father is of no interest to Shamshad’s family, the police or other authorities and it did not accept he was a credible witness. It considered that the father had invented the entire story to provide a basis for his non-refoulement claim. [141]

(2)  The mother’s evidence was made up to prolong her stay in Hong Kong. [174]

(3)  The mother and her family can relocate to another area in Indonesia and live safely there if they return to Indonesia. [178] & [181]

(4)  The Board accepted that the younger daughter had congenital problems and needs special medical care. [193]

(5)  Having considered the medical facilities in Indonesia, the Board did not accept that there is a real risk if the younger daughter returns to Indonesia with her family now or in the foreseeable future. [198]

(6)  The Board found the younger daughter will also receive medical care in Pakistan if she is refouled to Pakistan together with her parents. [213]

(7)  The Board found that the applicants do not have a well-founded fear of persecution for a Conventional reason and the parents and their two daughters do not have a persecution risk. [222]

Application for leave to apply for judicial review

13.  The applicants filed Form 86 on 1 November 2019 for leave to apply for judicial review of the Board’s Decision. The applicants did not put forth any valid grounds in support of their application.

14.  In the affirmation of the parents, they have not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  It is apparent that the applicants were legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that the legal representative has to put the minors’ issues to the Board, which had to have separate consideration for them. See Begum Shufia & Others v Torture Claims Appeal Board [2024] HKCA 687 at [18] & Asif Muhammad & Others [2025] HKCA 630 at [18].

18.  The Board had rejected the parents’ evidence on the facts of their claim. They have no factual basis in support of their claim. Since the children’s claim rely on the their parents’ fact, their claim, insofar as the facts are concerned, they have no factual basis in support of their claim.

19.  Insofar as the minor issues are concerned, the Board had already had separate consideration for them. It found there is no basis to support their claim for non-refoulement. The Court of Appeal in Nguyen Quang Hien & Others v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & Director of Immigration [2022] HKCA 1704, Hon Barma and Au JJA, 16 November 2022, dismissed the appeal and held:

“37. In the present case, the Daughter’s claim is premised fundamentally on the Father and Mother’s claims. The Board, after considering the evidence of the Father and Mother, disbelieved them and found their accounts and claims to be evasive, misleading and incredible: see [36] ‑ [47] and [51] of the Board’s Decision. Once the Father and Mother’s claims have been rejected, the Daughter’s claims are left with no factual support. Moreover, the Board had indeed further separately considered the Daughter’s claims based on her medical needs and found the same to be inconsistent and incredible … The Board was fully entitled to reach this conclusion on the basis of its assessment and evaluation of the evidence and there are no valid public law grounds raised by the applicants to challenge this conclusion.”

20.  Having considered the Board’s Decision, I am satisfied that the Board had attained higher standards of fairness, in particular, the minors’ issues without any error in law or procedural impropriety; and there is no Wednesbury unfairness in its finding of the facts. There is no reason for this Court to interfere with the Board’s Decision.

21.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

22.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

23.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd and the 4^th applicants’ application a nullity.

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