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

HCAL 737/2021

[2026] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 737 of 2021

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 21 May 2021 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 4 May 2021 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 August 2018 (the “Notice”) relating his application for non-refoulement protection.

2.  The Applicant is a Pakistani national, aged 35. He surrendered to the Immigration Department on 17 February 2016, claiming to have sneaked into Hong Kong on 1 January 2016 from Mainland China. On 13 July 2016, he raised a non‑refoulement claim. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”) and rejected by the Director’s Notice. His appeal against the Director’s Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of both the Board’s Decision as well as the Director’s decision in the Notice.

3.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision, it is no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, the Court would consider his leave application as regards the Board’s Decision only.

The Applicant’s case

4.  The Applicant’s personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [2] for reference. In gist, he claims he will be harmed or killed by his enemy, if refouled, for stopping his enemy from being rude to his father at a meeting between his father and his enemy before some elders of the community.

5.  The Applicant’s father was a recognized political and social figure in his home area and a member of the Muslim League (Q) political party. His enemy was a member of the Provincial Assembly and a member of the Muslim League (N) political party. His enemy had illegally occupied a piece of land donated to a mosque for his own use. Some local people brought the matter up to the Applicant’s father. On 21 August 2015, the Applicant and his father had a meeting with his enemy and the elders. As his enemy’s manners grated on the Applicant’s father, the Applicant stopped his enemy from being rude to his father. His enemy responded with a threat that he would deal with the Applicant. Before the situation turned worse, the meeting ended and everybody left.

6.  Two days after the meeting, the Applicant was attacked by five to six people for five to seven minutes in a crowded market (the “attack incident”). The Applicant did not know his assailants but believed they were his enemy’s men. The Applicant and his father made a complaint to the police station, but the police refused to register their complaint. The Applicant believed that was due to his enemy’s influence.

7.  A week later, some people came to the Applicant’s home. They spoke foul language and fired shots in the air (the “gun firing incident”). The Applicant believed they were his enemy’s men as he had no other enemies and also because he had made a complaint to the police about the attack incident. The police came to his home and neighbourhood looking for him because his enemy had registered a case against him for firing guns.

8.  The Applicant moved to live with his sister in Gujrat from September to November 2015 until two unknown men came to look for him. He was informed by his father that his enemy’s men had been asking for his whereabouts in his home town. In the same month, three men went to the office of his father’s friend looking for the Applicant. The Applicant suspected they were his enemy’s men. All these incidents of people looking for him are collectively referred to as the “warning incident”. Fearing for his safety, the Applicant’s father sent him to another friend’s place in Lahore. On 27 December 2015, the Applicant flew to Mainland China. From there he sneaked into Hong Kong.

9.  The Applicant thought neither the Pakistani authorities nor any non‑government organisations would help him because his home town was not a well‑developed area and is under the contriol of his enemy. He did not consider it feasible to relocate to other areas in Pakistan because he thought his enemy could locate him wherever he would be in Pakistan through his connection with his political party and with his influence and power.

The finding of the Board

10.  The Board considered the crux of the Applicant’s case is based on his mere assertion of his enemy’s animosity towards him, which was triggered by his protection for his father during the meeting with his enemy regarding the land dispute. It accepted there might probably be such a land dispute between his enemy and the people in the Applicant’s local area including the elders, the Applicant and his family. But it was not persuaded that the dispute was the cause of the Applicant’s alleged fear of being harmed or killed by his enemy. It found there was no cogent reason for the Applicant being so overwhelmed by the attack incident, the gun firing incident and the warning incident which allegedly gave rise to his fear leading him to flee Pakistan.

11.  The Board found it dubious that his enemy being a well-known, rich and powerful personality in the locality would take such drastic action in high profile by sending his people to attack the Applicant in broad day light during rush hours at a busy market. On the Applicant’s own admission, it was his speculation that the assailants were his enemy’s people. The Board was not persuaded that the attack incident ever occurred. Even if it did occur, the injuries the Applicant suffered was not serious. It rejected that the Applicant had any reason to form his alleged fear of his enemy harming or killing him in the past and future.

12.  The Board did not accept the gun firing incident occurred. Even if it did, the shooters purportedly sent by his enemy did not inflict any harm on the Applicant and had no intention of killing the Applicant. The Board did not accept that his enemy was involved in the incident. It rejected that the Applicant had any factual basis to form his fear of his enemy harming or killing him in the past or future.

13.  The Board also found it inconceivable that his enemy would blatantly send his people to spread death warnings in the Applicant’s home town. It considered it unlikely that a reputable, powerful, rich and member of the Provincial Assembly would bother to deal with the Applicant in the way the Applicant described over a land dispute, especially if the donation of the land to the mosque was known to people in the Applicant’s home town. The Board did not accept the Applicant’s enemy had been looking for him and spreading warnings to kill him. The Applicant also admitted it was his speculation that those men were sent by his enemy.

14.  On the basis of authoritative country of origin information (“COI”), the Board was satisfied that state protection would be available to the Applicant if he seeks assistance from the authorities. It has been a long lapse of time since the Applicant left Pakistan in December 2015. The Board considered it unlikely that his enemy would spend his resources in pursuing the Applicant who is not an important figure in his home town or in Pakistan. Given his age and work experience, the Board found he could start his life afresh living in other areas when refouled back to Pakistan.

15.  Applying the law applicable to non-refoulement protection to the Board’s finding, the Board came to the conclusion that the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds. Hence, it dismissed his appeal against the Director’s Notice.

16.  Even assuming that the attack incident and the gun firing incident did occur, the Board found the Applicant was not severely injured in the attack incident and was not injured at all in the gun firing incident indicating that the perpetrators had no intention of killing the Applicant. For this reason, its conclusion would be the same.

The legal principles applicable to judicial review

17.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3].

Grounds for judicial review

18.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law or procedural unfairness. As for irrationality in the Decision, he said he had told the Board everything.

19.  He had filed an eight-page supporting affirmation setting out the procedural background and his grounds of application. The grounds are repetitive and mainly revolve around lack of legal representation in prosecuting his leave application (paragraphs 8 and 9 of the supporting affirmation) and language assistance in understanding the Decision and preparing for his leave application (paragraphs 9, 10, 12, 14 and 17 of the supporting affirmation). He said he had no legal representation since the Director refused his claim because the Duty Lawyer Service was of the opinion that he had no grounds of appeal. He complained that the Board’s Decision was not translated to him and it was unlawful that the Decision was written in a language that he did not understand. He argued that without a full understanding of the Decision, he could not make a proper application for judicial review. He submitted that the absence of legal representation and language is procedurally unfair.

20.  The high standard of fairness in processing non-refoulement claims does not require that a claimant must be provided with legal assistance throughout the entire non-refoulement process. It was held by the Court of Appeal in Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[9] nor in the judgment of FB v Director of Immigration[10] prescribes that 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. The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law, and whether minor claimants are involved. Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage in the non-refoulement process. It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview. During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and his legal representative presents his claim to the immigration officer and makes submissions on the law and the fact on his behalf. Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the non-refoulement claim form (“NCF”) and answers in the screening interview given under legal advice. Unless the legal representative advises appeal, the legal assistance stops. In view of the limited resources available, legal assistance could only be provided with reasonable proportionality. Public funds could not provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend. The high standard of fairness is deem attained under such circumstances. In this case, as the Applicant asserted, his legal representative was of the opinion that he had no grounds of appeal. There was no reason why public fund should be incurred in fighting an appeal when the Applicant’s own legal representative considered there was no prospect of success. If the Applicant wishes to proceed further, he may have to do so on his own. All the benefits that legal representation could have afforded him are contained in the hearing bundle before the Board. His interests are taken care of by an independent board, the law and the high standard of fairness. He would not be prejudiced due to lack of legal representation.

21.  As for his complaint about lack of language assistance, the Court of Appeal held in Karamjit Singh[11] 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. The Applicant had the benefit of legal representation and language assistance in presenting his case to the Director. He had language assistance in preparing the NCF, in attending the screening interview and at the hearing before the Board. He understood what these documents were about. If he needs to be reminded, he ought to have prepared some notes himself for that purpose, rather than to helplessly claim he was not given language assistance when he had the benefit of such assistance. All these documents had been presented to the Director, which were then presented to the Board in the form of the hearing bundle. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

22.  It must be borne in mind that it was the Applicants’ choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he have 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 native language for his benefit and convenience as and when he requires. He has to find assistance himself from among his friends and ethnic community. There is a very large Pakistani community in Hong Kong. Indeed, the Applicant was able to file an adequately well written affirmation in English, indicating that he has access to language assistance.

23.  His other complaints are that the Board was biased, acted on assumption and did not give him an opportunity to explain himself or to elaborate. He gave no particulars. The Board accepted his evidence that his dispute with his enemy arose against the background of the land dispute as he asserted. It tested his case against common sense and inherent probability. It rejected his evidence about the attack incident, the gun-firing incident and the warning incident. It gave reasons for its finding. This is just what the Board was charged to do. His complaints are challenges against the finding of fact by the Board, which is impermissible save for errors of law, procedural unfairness and irrationality in the Decision which the Court will re-visit in its overall scrutiny of the Board’s Decision.

Overall scrutiny

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

25.  While accepting that the Applicant and his father might be involved in some dispute with their enemy about the enemy’s illegally occupying land donated to a mosque, the Board did not accept that the attack incident, the gun firing incident and the warnings which caused the Applicant to flee Pakistan and on which his claim for protection is based did occur. It also found even if those incidents did occur, they were not sufficient to entitle him to protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

26.  For the above reasons, the Applicant’s leave application is refused.

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