MOHAMMAD SHARFRAZNAWAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 204/2020

[2025] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 204 of 2020

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

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 20 January 2020 (“Form 86”), 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 8 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 14 November 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by his creditor in India, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. 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 adopt the Board’s abbreviations and descriptions herein.

Discussion

3.  The Applicant has raised the following matters, as set out in Form 86 and the affirmation, to support his intended challenge of the Board’s Decision:

“(1) The Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy with the requirement.” (Ground 1)

(2) The Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal. (Ground 2)

(3) The Respondent’s decisions to refuse the Applicant’s appeal on [sic] were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness. (Ground 3)

(4) The Respondent failed to meet the greater care and duty owed to a self-represented claimant. (Ground 4)

(5) The Applicant was not legally represented in his appeal hearing. There was no Legal advices was [sic] provided to the Applicant before his appeal filing.” (Ground 5)

(6) Due to lack of understanding on what will happen in the hearing since the hearing bundle was not provided earlier or with interpretation, I was confused in terms of what was happening.” (Ground 6)

(7) However, I answered all the questions with honestly [sic] and it aggravates me that my credibility was found questionable. I strongly believes [sic] that it was an unfair hearing due to lack of care by the Torture Claims Board to make appropriate arrangements in relation to the hearing bundle. (Ground 7)

(8) Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to my country of origin. (Ground 8)

(9) This is so unfair to give Decision of the Article 2 of HKBORO claim without even being screened by the Immigration Department. How is this possible for any claim goes to Appeal section directly without even screened or judge [sic] by the Immigration Department first? (Ground 9)

(10) Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition. (Ground 10)

(11) I am a genuine Non-refoulement Claimant who faced all these dangerous problems and harassment and torture in India. I am unable to find any place to stay safely in his country, so I fled abroad to save my life. I thinks [sic] I am the luckiest person who succeeded to escape from such danger and is still alive today. (Ground 11)

(12) I believe this Director of Immigration and the Adjudicator of Appeal Board reached the wrong decision in assessing his USM claim. How come the Director of Immigration and the Adjudicator rejected my claim without any proper inquiry and without carefully understanding my situation? To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there. (Ground 12)

(13) If I didn’t run away, I certainly would have been killed by my enemies. My problems were getting more and more life-threatening day after day, I had no other choice but to escape to Hong Kong and seek asylum here. (Ground 13)”

4.  I am not satisfied that any of these matters or grounds is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

5.  First and foremost, given the seriousness of the issues involved, I remind myself to apply an enhanced standard as required by law through vigorous examination and anxious scrutiny of the Board’s Decision.

6.  After reviewing all the evidence submitted by the Applicant and applying the relevant law and legal principles related to the issues and the Grounds, the Board concluded that he was not a credible witness and rejected his evidence due to “significant discrepancies, inconsistencies, implausibilities and obvious contradictions”. In particular, the account of events given by the Applicant at the hearing was very different, leading the Board to come to the view without the slightest doubt that he was lying. As a result, the Board declined the Applicant’s claim for non-refoulement protection on the grounds that there was Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Persecution Risk.

7.  The assessment of risks of harm was primarily the Board’s responsibility, and it was entitled to make evaluations based on the evidence available. In so doing, the Board had correctly set out the burden and standard of proof, the law and key legal principles, and adhered to a very high standard of fairness. I do not find that the Applicant has sufficiently shown any error of law, procedural unfairness, or irrationality on the Board’s part.

8.  The Applicant’s complaints under Grounds 1 to 4 are broadly general and vague, relying solely on selective keywords and phrases, and fail to provide the necessary factual basis to demonstrate how these allegations apply to this case, including how discretion was unlawfully fettered, how the heightened duty of care for the unrepresented party was breached, and how the decision made was unreasonable or irrational. Similarly, the Applicant’s complaints regarding procedural errors or unfairness lack specific details and clarity, making these grounds hardly valid without clear supporting facts.

9.  Grounds 5 to 7 must also be dismissed for the reasons set forth below.

10.  The general principle is that 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 grants a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks 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).

11.  Notably, the Applicant never indicated a need for legal representation and was able to make decisions without difficulty after the procedure was clarified. With the assistance of a Hindi interpreter, the procedure was explained during the hearing, including that the Applicant could supplement or amend the information set out in the NCF and the Interview. The Board informed the Applicant that the NCF, the written record of the Interview, the Director’s Decision, the Notice, and other documents had been read, and reminded him of the basis of his claim for non-refoulement. The Board also mentioned that the issue of internal relocation would arise. At the conclusion, the Applicant was asked if he had anything further to add or any additional observations about the case, to which he merely stated that he felt at risk.

12.  Regarding the complaint that the Hearing Bundle was not provided earlier or with interpretation, leading to a lack of understanding about what would happen, this cannot be accepted. The materials in the Hearing Bundle included the NCF, the written record of the Interview, the Director’s Decision, and the Notice of Appeal/Petition. The NCF was submitted by the Applicant to the Immigration Department, and he attended the Interview on 20 October 2017. The Director subsequently rejected his claim in the Notice of Decision dated 14 November 2017, and not only did he not claim any inability to understand it, but he was also able to file the Notice of Appeal/ Petition.

13.  It is unclear which sources of news or cases were unofficially recognized, which sources were considered hearsay, or outdated, and what information without credible sources were taken into account by the Board as complained in Ground 8.

14.  Ground 9 is incomprehensible because it is unclear why the Applicant alleges that his claim based on BOR 2 Risk was not screened by the Immigration Department, especially given the facts as follows. The Applicant claimed non-refoulement by written representations dated 5 April 2017 and 1 May 2017. He submitted the NCF and later attended the Interview. His claim was then assessed under the USM based on grounds including BOR 2 Risk. Following the rejection of his claim by the Director in the Notice of Decision, he lodged a notice of appeal against it to the Board.

15.  The Applicant has not specified the allegedly “many more unacceptable and unexplainable grounds in the Board’s Decision” complained of under Ground 10, leaving nothing for consideration.

16.  Grounds 11 to 13, as raised by the Applicant, are not valid bases. These grounds are, in essence, challenge to the findings of fact determined by the Board. The Court is neither expected nor required to reconsider the Applicant’s case anew. The role of the Court in a judicial review is not to provide a further avenue of appeal. While the Court should examine whether the procedure adopted by the primary decision makers meets the high standard of fairness, the merits of non-refoulement claim are essentially matters for them to resolve (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.).

Conclusion

17.  Taking into account the above, I have refused leave and dismissed the Leave Application.

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