Butt Muhammad Naeem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 158/2020

[2025] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 158 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;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 15 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 10 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds other than torture risk. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000158_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that he would be subjected to torture by a political rival group after the killing of a cousin of the president of the group in a political rally in 1995. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.In the Form 86, the applicant named both the Board and the Directors as the proposed respondent(s) as well as the proposed interested parties. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 28 March 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In his supporting affirmation, the applicant stated that his life was in grave danger in his country; that internal relocation would be practically impossible; that state protection was non-existent due to a new law and the fight against terrorism, and that the Board used a biased and formulaic approach in making its decision. However, no particulars were provided.

7.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. He said he had nothing to say. In order to refresh his memory as to the assertions stated in his supporting affirmation, I read back to the applicant the above complaints and asked him if he wished to elaborate on these grounds. The applicant still confirmed that he had nothing to add.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness consequent on the applicant’s refusal to answer the Board’s questions at the hearing before the Board and the Board’s drawing of a negative inference. In such situation, the Board should adhere to a rule of fair play and professional practice applicable to non-refoulement claim hearings as laid down in the English authority of Brown v Dunn (1894) 6 R 67, which was applied by analogy by the Court of Appeal in Re Masud Md[4]. The rule in Brown v Dunn:

“[32] … requires that if a cross-examiner intends to challenge a witness's evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

[33] There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

10.The rule of Brown v Dunn was considered in a later Court of Appeal decision in Buniag Renante Lulu v Torture Claims Appeal Board[5]. The Court of Appeal at [25] clarified that :

“Re Masud Md did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps or lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide the applicant an opportunity to respond if he or she wishes to.”

11.The above principles derived from the rule of Brown v Dunn would have required the Board to draw the applicant’s attention to the perceived inconsistencies in relation to the applicant’s claimed risks set out in the documents placed before the Board. As the Board’s finding of the applicant’s lack of credibility was entirely based on the documents alone without drawing any attention to the discrepancies that formed that basis of his finding, the Board could arguably be faulted for having failed to adhere to the rule of fair play.

12.However, it is noted that the Court of the Appeal in both Re Masud Md and Buniag Renante Lulu referred to above also stated that the rule of Brown v Dunn is not to be applied in a straitjacket. The Court of Appeal in Re Masud Md at [42] in fact reiterated that the rule of fair play as laid down in Brown v Dunn is not :

“intended to derogate from the principle that while the exercise is one of joint endeavor it remains for the applicant to make his case, or from the need for the applicant, in discharging his burden, to cooperate and provide all necessary information including by answering questions put to him. It is not the Board’s role to assist the applicant in establishing his claim; its role is to ensure that the claim is fairly processed. What fairness demand will depend on the facts of each case.”

13.After having carefully taken into account the principles discussed above and all the materials before me, I am nonetheless satisfied that the Board had correctly applied the law relating to all the grounds in the Board’s Decision and observed a very high standard of fairness.

14.First, the applicant had chosen to abdicate his responsibility of discharging his burden of proof when he was given an opportunity to do so at the hearing. It is not apparent from the Board’s Decision that the applicant had given any reason for his decision in not cooperating with the Board at the hearing, and to provide all necessary information including by answering questions put to him.

15.Secondly, the Board’s assessment of the applicant’s credibility was based on the latter’s evidence given to the Director and all the materials placed before the Board, which showed that the applicant had previously used false identifies and that he did not make a torture claim until 5 years later. This finding of the applicant’s lack of credibility of his claims is based on the Board’s assessment of all the evidence.

16.Thirdly, the Board had taken into account the applicant’s untested and undisputed evidence when assessing his claims.

17.In the circumstances, the Board’s conclusion that the applicant did not face a real risk of any form of harm in Pakistan are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

18.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness in the Decisions of the Director and the Board. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Orders

19.The Form 86 is amended on the court’s own motion.

20.The Leave Application be dismissed.

Dated the 29^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