OBAIDUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3673/2019

[2025] HKCFI 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3673 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 oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 28 November 2019 (the “Board’s Decision”); and (2) the decision made on unknown date but notified to the Applicant on 9 December 2019.

2.  The alleged decision made on unknown date but notified to the Applicant on 9 December 2019 as identified in the Form is in fact the Board’s Decision. This was confirmed by the Applicant in the hearing on 4 March 2025.  The Applicant claimed that he was only notified of the Board’s Decision on 9 December 2019.

3.  In the Form, the Applicant has named Bernard Whaley, the adjudicator of the Non-refoulement Claims Petition Office responsible for the Board’s Decision, as the proposed respondent.  This is clearly misconceived.  The correct proposed respondent should be the Board.  I make an order to amend the same accordingly on the court’s own motion.

4.  The Applicant had requested for an oral hearing for the application.  The hearing took place on 4 March 2025.  The Applicant attended the hearing in person.  In the hearing, the Applicant indicated that apart from the grounds stated in the Form and in the supporting Affirmation, he had no further submissions to make.  The Applicant also indicated that he had no further documents to submit.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision and in the Board’s earlier decision dated 29 February 2016 (the “Board’s 2016 Decision”), and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision and the Board’s 2016 Decision are included below^[1]  for reference.Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  In the Form and in the supporting Affirmation, the Applicant alleged the following in support of the Leave Application:-

(1)  The Board had unlawfully fettered his discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement.

(2)  The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(3)  The Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(4)  The Board had failed to meet the greater care and duty owed to a self‑represented claimant.

(5)  The Applicant was not legally represented in the appeal.  There was no legal advice provided to the Applicant before his appeal filing.

(6)  The hearing bundle and documents, including the skeleton submission of the Director, was provided to the Applicant only a few days before the hearing such that the Applicant had insufficient time to prepare and arrange translation.  As a result, the hearing before the Board was unfair.

(7)  The Board did not notify the Applicant of the Board’s Decision by phone as requested by the Applicant.

(8)  The Board had significantly relied on the source of news which is not officially recognized or is simply hearsay.  The Board had also relied on cases which are fairly outdated considering the dramatic changes.  This had resulted in the Board making groundless speculations that it would be safe for the Applicant to return back to his country of origin. 

(9)  It was unfair for the Board to give decision on Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”) claim without being “screened” by the Director. 

(10)  The Board rejected the Applicant’s claim without proper inquiry and without carefully understanding his situation.  To understand the Applicant’s claim fairly, the immigration officer and the adjudicator ought to tour his country and ask those familiar with his case what real danger he would face if he is to return there.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.  First, in relation to points (1) to (4), and (8) identified in paragraph 7 above, these grounds are nothing but vague assertions without particulars or elaboration.  The Applicant has not particularized, let alone demonstrated, how the Board had acted unlawfully, unfairly, unreasonably or irrationally as alleged.  The Applicant equally failed to identify what source of news or cases relied upon by the Director was/were alleged to be “not officially recognized”, hearsay or outdated.  In the premises, I do not consider any of these grounds reasonably arguable.

9.  In relation to point (5) identified in paragraph 7 above, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the HKBORO or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22.  In the present case, as pointed out in paragraph 6 of the Board’s Decision, in response to the Applicant’s indication that he had further details to disclose in relation to his problem and his request for assistance from the Duty Lawyer Service (the “DLS”) (as set out in the Applicant’s written signification dated 26 January 2017), the Applicant was specifically told by the Director that he should contact the DLS directly.  Full details of the DLS was provided to the Applicant.  The Applicant was directed to submit  further information, if any, by 21 February 2017.  Despite the aforesaid, the Applicant did not submit any further information or submission.  The Applicant was also provided a fair opportunity to present his case before the Board on 5 September 2019 and he in fact did so. I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board.  I also note that at the hearing held on 5 September 2019 before the Board, the Applicant did not raise this “lack of legal assistance” argument. 

10.  In relation to point (6) identified in paragraph 7 above, In Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.  In any event, I note that all the court documents (the Form and the supporting affirmation) were all written in English.  This indicates either the Applicant is familiar with the English language or that he had access to, or was able to seek, such language assistance as he may require.  There is no evidence to suggest that there was procedural unfairness in this regard.

11.  Point (7) identified in paragraph 7 above is plainly unmeritorious.  The Applicant cannot dictate how he was to be informed of the Board’s Decision.  In any event, there is no dispute that the Applicant has received the Board’s Decision, and that he managed to make the present application within time.  

12.  In relation to point (9) identified in paragraph 7 above, the Applicant’s assertion that the Director had not considered Article 2 of the HKBORO is again wholly devoid of merits.  In fact, the Director had, by its letter dated 13 January 2017, specifically invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the HKBORO, including the right to life under Article 2.  Thereafter, the Director issued a decision on 5 July 2017 which explained why he rejected the claim under Article 2 of the HKBORO. 

13.  In relation to point (10) identified in paragraph 7 above, there is no legal basis to require the Director or the Board to actually visit the Applicant’s home country to conduct any investigation of a non-refoulement claim.  Whilst the inquiry is one of joint endeavor, the burden is on the Applicant to prove his claims.  In the present case, the Director and the Board had plainly conducted proper inquiries into all relevant COI materials, including the information submitted by the Applicant.

14.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.  

15.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

16.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.    

17.  Lastly, I should mention that in the Form, the Applicant seeks an order continuing the anonymity and sealing order.  No order of anonymity has ever been made in the present case and there are no grounds put forward in support of such application.  I accordingly refuse to make the order.

Conclusion

18.  In the premises, I make an order that the Form 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

[1]  Board’s 2016 Decision: https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003673_2019_files/Board's_2016_Decision.pdf