Hakeem Fazal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3745/2019

[2025] HKCFI 1493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3745 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;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; (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 16 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 25 October 2019 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 25 October 2018.

2.The Director’s decision dated 25 October 2018 had already been superseded by the Board’s Decision. The Director’s decision is not a decision susceptible to judicial review once an 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 judicial review in relation to the Director’s decision, the application fails in limine.

3.In the Form, the Applicant has named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents. The Applicant has not named any 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 had requested an oral hearing for the application. The hearing took place on 11 March 2025. The Applicant attended in person. The Applicant however indicated that he had no submissions to make at the hearing.

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 it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is 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 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, the Applicant did not state any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant made a number of allegations in support of the Leave Application which can generally be summarized as follows:-

(1)  The Board’s Decision was unreasonable and unfair (as required by the Wednesbury test). The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights. The Board had failed to give the Applicant sufficient time and chance to arrange relevant evidence in support of his case.

(2)  The Director (presumably the Applicant meant the Board) had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case. This had led to an unfair outcome of the case. The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles. The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)  The Director (presumably the Applicant meant the Board) had failed to take into account or give enough weight to the Applicant’s argument. The Board had failed to give enough weight to the evidence which shows that the police in his country would not be able to protect him.

(4)  The Director (presumably the Applicant meant the Board) showed an unfair attitude towards the Applicant’s claims. There was corruption and incompetence of the administration in the Applicant’s country. Various human rights organizations had compiled reports on the matter which support the Applicant’s assertions.

8.I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.

9.In relation to point (1), the allegation that the Board’s Decision was unreasonable and unfair is vague assertion without particulars or elaboration. The Applicant has not particularized, let alone demonstrated, how the Board had acted unfairly or unreasonably as alleged. The Board had duly considered the Applicant’s right to life and concluded that the Applicant had failed to establish the claim (paragraphs 23 to 25, 37 to 39, 57 to 58 of the Board’s Decision). There is nothing to indicate that the Board’s Decision in this regard is flawed. In so far as the Applicant contended that the Board had failed to give the Applicant sufficient time and chance to prepare and adduce evidence in support of his claims, such contention is plainly unmeritorious. The Applicant was given ample opportunities to adduce evidence in support of his claims both before the Director and before the Board. He was further given an opportunity to give evidence before the Board on 13 September 2019 and he in fact did so (paragraph 16 of the Board’s Decision). At no time did the Applicant ever suggest to the Board that he required more time to adduce further evidence.

10.In relation to point (2), the Board had duly considered and applied the correct legal principles on the acts of state (paragraphs 33 to 35 of the Board’s Decision). The Board then assessed the credibility of the Applicant and concluded that the Applicant’s evidence was suspicious and unreliable (paragraphs 37 to 39 of the Board’s Decision). The Board went on to consider whether there was “state acquiescence” in relation to the alleged torture suffered or to be suffered by the Applicant, and eventually dismissed the Applicant’s claims in this regard (paragraphs 66 to 75 of the Board’s Decision). I do not see any errors committed by the Board in coming to that conclusion. The Applicant also failed to show how the Board had acted unfairly or unreasonably in this regard. I accordingly reject this ground as well.

11.Point (3) is equally unmeritorious. The Applicant has failed to identify precisely what argument he had advanced which the Board was alleged to have overlooked or failed to give sufficient weight. The Board had considered the evidence and concluded that there is no evidence in support of the Applicant’s speculation that the police in his country would not protect him (see paragraphs 67 to 74 of the Board’s Decision). The Board was entitled to come to that conclusion.

12.Finally, in relation to point (4), the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him or in the process. As regards the problems in Pakistan, the Board had duly considered all the COI materials (paragraphs 42 to 54 of the Board’s Decision). The Board was again entitled to come to the conclusion it did.

13.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.

14.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.

15.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

16.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 10^th day of April 2025

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