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

HCAL 2312/2020

[2025] HKCFI 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2312 of 2020

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;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Muhammad Waqas (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 November 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 8 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Pakistani. He was born on 2 June 1983 in Punjab, Pakistan. He received 5 years of education and had 8 years of work experience as a labourer.

The Claim

3.  The Applicant claimed that he inherited a plot of land from his father (“Land”). In around 2002, he borrowed 500,000 Pakistani Rupees (“Loan”) from his paternal aunt (“Aunt”) to treat the heart condition of his younger sister. The Applicant used the Land as security for the Loan.

4.  The Applicant failed to pay back the Loan. Aunt sent men to collect the Loan. The Applicant identified three incidents (“Incidents”) when Aunt, her husband and/or sons threatened and/or attacked him.

5.  In the first Incident, Aunt cursed the Applicant’s parents with foul language and damaged the things in his home. In the second Incident, the Applicant suffered injuries on his face and jaw and had a broken right arm. He was hospitalised for 4 or 5 days. In the third Incident, the Applicant fell to the ground after being ambushed and was punched and kicked. He was hospitalised for about a week.

6.  The Applicant claimed that Aunt was a housewife. Her husband was a retired member of the army and a supporter of the Pakistan Muslim League (N) and had connections with its leaders and the police. One of Aunt’s sons was also serving in the army.

7.  Towards the end of 2006, the Applicant’s mother asked the Applicant to move to Lahore to avoid further troubles. However, he was told that Aunt’s son came to Lohore to look for him, so he decided to leave Pakistan. He stayed in Lahore for about 4 or 5 months before leaving the country.

8.  The Applicant claimed that he would be harmed or killed by Aunt and her family members if he were returned to Pakistan.

Procedural history

9.  The Applicant arrived in Hong Kong illegally in around mid-2007. He was arrested on 23 October 2007. On 1 November 2007, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”). The Director refused the Torture Claim on 31 January 2012 when the Applicant failed to provide the required documents notwithstanding the fact that he was assisted by the Duty Lawyer Service (“DLS”) in the Torture Claim.

10.  By a written representation of 19 September 2013, the Applicant lodged the Claim. On 8 August 2018, the Applicant requested the Claim to be assessed on all applicable grounds (including torture risk) under the unified screening mechanism (“USM”) to which the Director agreed. Thus, the Claim was assessed on all applicable grounds under the USM, namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

11.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

12.  On 24 November 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named both the Director and the Board as the proposed respondents.

13.  By a letter dated 27 August 2024, the Applicant sought to withdraw his intended judicial review application. He stated that the problem in his country had been “solved” and that it was safe for him to go back home (“Withdrawal Application”).

14.  When the Applicant filed the Form 86, he informed the court in writing that he did not ask for an oral hearing for his application. As such, I proceeded to deal with this application for leave for judicial review by paper disposal.

The DOI Decision

15.  The Director noted that the low intensity and low frequency of past ill-treatment from Aunt and her family members was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries he suffered from the Incidents were not serious. The Director also took the view that Aunt and her family members did not really intend to kill or seriously harm the Applicant and only wanted to press him to repay the Loan.

16.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

17.  The Director further found that internal relocation would be viable. If the Applicant moved to Lahore or Islamabad city, it would be difficult for Aunt and her family members to locate him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

18.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

19.  The Applicant elected not to give oral evidence at the Appeal hearing before the Board, “despite being questioned, prompted and reminded of the opportunity to do so” (§43 of the Board’s Decision). Thus, the Board did not have the benefit of his oral submissions to gauge whether he would give a different version of events, nor the benefit of additional insights, than that recorded in his written submissions.

20.  Based on the evidence adduced, the Board did not accept that Aunt really intended to cause him serious harm. The Board did not accept that the alleged threats faced by the Applicant from Aunt or her family exceeded the minimum threshold for claiming protection.

21.  The Board also found that meaningful state protection would be available to the Applicant in Pakistan.

22.  The Board noted that the Applicant was able to live safely in Lahore for several months despite the alleged threats from Aunt. The Board held that if the Applicant relocated to Lahore or Islamabad city, it would be difficult for Aunt or her family to locate him.

23.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

24.  In a judicial review, the court does not step into the shoes of the decision makers.

25.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are 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 and COI materials and 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 Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

26.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  At the hearing of Appeal, the Board had expressly informed the Applicant about issues that were troubling the Board by putting questions to the Applicant. The Board had “prompted and reminded” the Applicant the opportunity to address the Board’s concerns. I am of the view that the Board had in this case discharged its duty of high standards of fairness. Yet, the Applicant “refused to give any oral submissions or answers (other than to confirm his name and hometown),” (§43 of the Board’s Decision). The Board proceeded to deal with the Appeal based on the Applicant’s evidence as set out in the Applicant’s written submissions.

28.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  neither the Director nor the Board had taken his unique situation into account fairly and sequentially;

(2)  he was not legally represented in the Appeal as the DLS was of the view that there were no grounds for appeal and he received no legal advice for the Appeal;

(3)  the Board’s Decision was in English and not translated for him and he did not fully understand the reasons for his claims being rejected;

(4)  he was deprived of his basic rights as a litigant to be informed of his legal rights and to be duly informed of all information because of the lack of legal and language assistance;

(5)  the Board had failed to make proper enquiries and made baseless assumptions without allowing him an opportunity to explain; and

(6)  the Board had challenged his credibility.

29.  The Applicant’s grounds can be grouped into: (1) lack of legal assistance; (2) lack of language assistance; (3) no proper enquiries; and (4) challenge to findings of risk and credibility.

30.  The Applicant exhibited the Board’s Decision, the DOI Decision, his non‑refoulement claim form (“NCF”) and extracts of records of his screening interview (“Record of Interview”) but no other supporting documents to the Supporting Affirmation.

31.  The aforesaid complaints of the Applicant are bare assertions without particulars or supporting evidence. Without particulars and supporting evidence, such grounds are not reasonably arguable.

32.  In §§5-7 of the Supporting Affirmation, the Applicant stated that he wished to appeal against the DOI Decision in this application. This was also stated in the Form 86. This was misconceived.

33.  This is an application for leave for judicial review. It is not a second appeal of the DOI Decision nor a further appeal from the Board’s Decision.

34.  The Applicant had appealed against the DOI Decision to the Board. The Court of Appeal had pointed out in Re: Ali Usman [2018] HKCA 955 at §21 that “as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”. The same applies to this case.

35.  The Applicant may not have the second bite of the cherry to appeal against the DOI Decision twice under the name judicial review. I accordingly dismiss the Applicant’s application for leave for judicial review of the DOI Decision.

Lack of legal assistance

36.  The Applicant complained that he was not legally represented at the Appeal and received no legal advice for the Appeal. From §5 of the DOI Decision and §2 of the Board’s Decision, it can be seen that the Applicant was assisted by the DLS in submitting the Claim.

37.  The Applicant stated in §9 of the Supporting Affirmation that: “Since the Notice of Decision [i.e. the DOI Decision] was issued to me, the Duty Lawyer Service no longer represented me as my legal representative was of the view that there were no grounds for appeal.”

38.  From the above, it can be seen that the Applicant had had the benefit of legal assistance in lodging the Claim to the Director. The DLS only refused to provide further legal assistance to the Applicant for the Appeal on the grounds of merits.

39.  As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“ 18. As a standard practice, the Director would have drawn her attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.” (original underlining)

40.  The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17)

41.  The Applicant further stated in §9 of the Supporting Affirmation that: “Furthermore, I was told there were no grounds for appeal based on the Notice of Decision issued by the Director of Immigration, which relied only on the three then applicable grounds.”

42.  This is plainly wrong. The Director had clearly stated in §§14-15 of the DOI Decision that the Claim had been considered under all the 4 applicable grounds under the USM. In any event, the Board had in the Appeal considered all the 4 applicable grounds under the USM (§§52-55 of the Board’s Decision).

43.  The DLS refused to provide legal assistance to the Applicant for the Appeal on merits. There was no suggestion that the DLS had not properly applied the merit test in refusing the Applicant’s application for legal assistance for the Appeal. I see no merit in the Applicant’s complaint on lack of legal representation in the proceedings before the Board.

Lack of language assistance

44.  The Applicant complained that the Board’s Decision was issued in English and not translated into his mother language for him.

45.  In §11 of the Supporting Affirmation, the Applicant stated that: “I find it very insensitive and possibly unlawful that the Adjudicator would allow the Determination [i.e. the Board’s Decision] to be written in a language that I do not understand and did not provide me with professional help (certified interpreter/translator) to help me understand the reasons for rejecting my claim.”

46.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation/translation service at any time a claimant desired or required. Both Chinese and English are official languages in Hong Kong. It cannot possibly be unlawful for the Board to issue the Board’s Decision in English. There is no legal basis for the Applicant to expect the Board to issue the Board’s Decision in his mother language.

47.  It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. He has to live with or cope with his language disability. He cannot expect to have the luxury of having every document translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community.

48.  I note that the Applicant prepared the Supporting Affirmation in English with the assistance of an interpreter. This showed that the Applicant could arrange for someone to explain English documents to him.

49.  In §15 of the Supporting Affirmation, the Applicant stated that: “The fact that the determination of the Torture Claims Appeal Board has never been read or translated to me should be considered a lack of assistance. Without knowing the reasons behind the rejection of my claim, I am deprived of the opportunity to make a full application for leave to apply for judicial review”. Such complaint was misconceived.

50.  The Applicant has to understand the Board’s Decision before he would decide to take out this application to seek judicial review of the Board’s Decision as he has to show to the court in this application how the Board’s Decision was erred in law, procedurally unfair or irrational. Without understanding the Board’s Decision, the Applicant has no basis to take out this application. Not understanding the Board’s Decision cannot be a ground for judicial review of the Board’s Decision.

51.  It was recorded in §6 of the Board’s Decision that:

“ At the hearing, the [Applicant] and the interpreter both confirmed that they understood each other and the [Applicant] confirmed that the submissions by the interpreter are correct.”

52.  It can be seen that appropriate language assistance had been provided to the Applicant at the Appeal hearing before the Board. This was confirmed by the Applicant in §11 of the Supporting Affirmation when he stated that: “The oral hearing was scheduled with an interpreter arranged to help with my language incapability.” No unfairness had been caused to the Applicant on the language issue in the Appeal.

53.  I do not see any merits in this complaint of the Applicant.

No proper enquiries

54.  The Applicant complained that the Board had not taken his unique situation into account and did not allow him an opportunity to explain.

55.  The Board had set out the Applicant’s case in some details in §§22-42 of the Board’s Decision.

56.  In §§43-55 of the Board’s Decision, the Board set out the reasons for its findings leading to its decision in rejecting the Appeal. I do not see any merits in the Applicant’s complaint of the Board not carefully considered his situation or evidence. In any event, such complaints are bare assertions without particulars and are not reasonably arguable.

57.  The Applicant complained in §14 of the Supporting Affirmation that: “I elected not to give any answers on the day of the oral hearing, but this does not mean that the Adjudicator is free to put words in my mouth or to make baseless assumptions without giving me an opportunity to explain.”

58.  The aforesaid complaint of the Applicant is groundless and wholly devoid of merits. It was recorded in §6 of the Board’s Decision that:

“ … …The [Applicant] then adopted all of the information contained in the NCF, the Record of Interview, and the Notice of Appeal/Petition (collectively, the “Documents”) as evidence in support of his claim. The [Applicant] confirmed that he has read the bundle that has a total 139 pages. The [Applicant] was given extra time to revisit and read his written submissions during the hearing to refresh himself of what was written. The [Applicant] wished to treat his written submission as his submission and did not elect to make oral submissions. I raised some questions which the [Applicant] gave oral response, but the [Applicant] refused to provide any oral submissions or answers except to confirm his name and hometown. The [Applicant] did not call any witness to give evidence at the hearing in support of his appeal.”

59.  The Board further noted in §43 of the Board’s Decision that:

“ At the hearing, although the [Applicant] did not volunteer any oral testimony or submissions, and largely refused to give answers to questions I raised (except to confirm his name and hometown), despite being questioned, prompted and reminded of the opportunity to do so. As the [Applicant] refused to give any oral submissions or answers (other than to confirm his name and hometown), I do not have the benefit of his oral submissions to gauge whether he would give a different version of events, nor the benefit of additional insights, than that recorded in the written submissions.”

60.  It can be seen that it was the Applicant’s own choice not to answer questions from the Board and refused to make any oral submissions at the Appeal hearing before the Board. It was also the Applicant’s own choice to adopt information in the Documents as his evidence. In such case, it lies ill in his mouth to complain now that the Board did not give an opportunity for him to explain. It was the Applicant who had refused to give explanation despite reasonable opportunities being given by the Board. This complaint of the Applicant has no merits whatsoever.

Challenge to findings of risk and credibility

61.  In the Supporting Affirmation, the Applicant stated that he feared the safety of his life should he return to his home country. He disagreed to the Board challenging his credibility.

62.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

63.  In disputing the findings on assessment on evidence, risk of harm and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

64.  As pointed out above, the Board proceeded to deal with the Appeal based on the Applicant’s evidence as set out in his written submissions. As such, the Board had not “challenged” the Applicant on his credibility (§16 of the Supporting Affirmation). There is simply no factual basis for this complaint of the Applicant.

The Board’s findings and the court’s decision

65.  The Board found that the ill-treatment, be it mentally or physically, inflicted upon the Applicant by Aunt and her people did not meet a minimum level of severity having regard to the frequency of past ill-treatment from them, the severity of the injuries sustained by the Applicant and the medical treatment required for the claimed injuries. Their behaviour of not escalating any harms suggested that they had no intention to escalate their death threats against the Applicant into action, but more to warn the Applicant only with an aim to get back the Loan. The Board was of the view that there was not a genuine and substantial risk that the Applicant would be killed or harmed.

66.  The Board was of the further view that there was no indication that the state of Pakistan was involved in any encouragement to harm the Applicant. This was a mere private dispute between the Applicant and Aunt. After considering the relevant COI, the Board was satisfied that in the future if the Applicant so required, meaningful state protection would be available to him. The Board further considered that internal relocation to Lahore or Islamabad city would be viable to the Applicant.

67.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

68.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

69.  In §§52-55 of the Board’s Decision, the Board considered the Claim under each of the 4 applicable grounds covered under the USM.

70.  The Applicant had failed to establish that there were substantial grounds for believing that he would be subjected to severe pain or suffering to fall within the scope of “torture” under Section 37U(1) of the Ordinance and he had not been subjected to pain or suffering sufficiently serious to reach a minimum level of severity for it to fall within the scope of BOR 3. The Board found that there was no substantial grounds for believing that the Applicant would face a genuine and substantial risk of being subjected to the torture risk or the BOR 3 risk if he were refouled to Pakistan.

71.  The Board doubted that the Applicant had a well-founded fear of persecution and that the feared ill-treatment fell within the ambit of the Refugees Convention. With the availability of state protection and viability of internal relocation, the Board found that the Applicant’s claim for non-refoulement protection on the ground of persecution risk failed.

72.  The Board was not persuaded that, with internal relocation being a feasible option, the Applicant would face a personal and substantial risk of his right to life being violated in breach of BOR 2.

73.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

74.  By the Withdrawal Application, the Applicant sought to withdraw his application for leave to apply for judicial review. He stated that his problem in his home country was solved and it was safe for him to go back home.

75.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

76.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

77.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“ The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

78.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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