MALIK TARIQ MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1187/2020

[2025] HKCFI 4020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1187 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 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 only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 June 2020 (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 7 May 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 27 July 2018 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

3.  In the Form, the Applicant named both the Director and the Board as the proposed respondents. The Applicant further named both the Board and the Immigration Department as the proposed interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

4.  The Applicant requested an oral hearing for the application. The hearing took place on 28 July 2025. The Applicant attended in person. Apart from saying that he still faces the same problem in his country, the Applicant indicated that he had nothing to say.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below 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 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.  The Applicant did not provide any grounds in the Form in support of the Leave Application.

8.  In the supporting Affirmation, the Applicant made a number of allegations in respect of the Board’s Decision. I shall deal with those allegations in turn briefly hereinbelow.

9.  First, the Applicant complained about the lack of translation and language assistance. 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.

10.  In so far as the hearing before the Board on 16 January 2020 is concerned, the Applicant was assisted by an interpreter qualified in Punjabi and English (§13 of the Board’s Decision). The Applicant did not complain about the lack of language assistance in the hearing before the Board. Again, there is no evidence to suggest that there was procedural unfairness in the hearing before the Board.

11.  Second, the Applicant complained about the lack of legal assistance. 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 Hong Kong Bill of Rights Ordinance (Cap. 383) 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, the Applicant was legally represented in the initial stage. The Director’s Decision was read back to the Applicant by an interpreter (§8 of the supporting Affirmation). Further, the Applicant had been advised by the Duty Lawyer that there were no grounds for appeal against the Director’s Decision (§7 of the supporting Affirmation). Despite that, the Applicant insisted on proceeding with the appeal before the Board. Accordingly, I fail to see how the Applicant can reasonably complain about the lack of legal assistance before the Board.

12.  In any event, the Applicant was given a fair opportunity to present his case in the hearing before the Board on 16 January 2020 and he in fact did so (§§5, 12-21 of the Board’s Decision). 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 16 January 2020 before the Board, the Applicant did not raise this “lack of legal assistance” argument.   

13.  The Applicant claims that he does not understand the Board’s Decision in the absence of legal and language assistance in the supporting Affirmation. If that is indeed the case, it cries out for an explanation as to how he can contend that the Board’s Decision was erroneous or unfair. I also do not see any unfairness in that the Board’s Decision was written in English, as contended by the Applicant.  

14.  Third, in so far as the Applicant complains that the Board did not provide adequate reasons in the Board’s Decision on the evaluation of the evidence (§12 of the supporting Affirmation), such contention is plainly unmeritorious. The Board had explained in detail why it rejected the Applicant’s claims (§§22-47 of the Board’s Decision).

15.  Fourthly, the Applicant complained that the Board did not give him an opportunity to clarify his case (§14 of the supporting Affirmation), this is again unmeritorious. The Applicant was given full opportunity to present and supplement his case at the hearing on 16 January 2020 before the Board.

16.  Fifthly, the Applicant alleged that the Board was biased and made many assumptions without allowing the Applicant an opportunity to explain or elaborate (§16 of the supporting Affirmation). Such contentions are bare assertions with no particulars in support. In any event, as pointed out above, the Applicant was given an opportunity to present and explain his case before the Board.

17.  Last but not least, the Applicant claimed that Wikipedia should not be considered as part of the COI materials (§18 of the supporting Affirmation). The Applicant however did not identify precisely which COI materials he was referring to, which part(s) thereof are alleged to be inaccurate, as well as the relevance of such COI materials to the claims.  

18.  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 was entitled to come to the conclusions it did (§§22-47 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is no basis to say that the Board had failed to assess the Applicant’s claims properly.

19.  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.

20.  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.

Conclusion

21.  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