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

HCAL 3716/2019

[2025] HKCFI 2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3716 of 2019

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 (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) dated 13 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of (i) the Record of Screening Interview by the Immigration Department dated 14 March 2018; (ii) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 28 November 2019 (“the Board’s Decision”); and (iii) the decision of the Director of Immigration (“the Director”) dated 30 May 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) other than risk of torture.

2.In Form 86, the Applicant has mistakenly named the Director as one of the proposed respondents and the Board as one of the proposed interested parties, which I have corrected on my own motion.

Background

3.The Applicant’s personal background, the incidents alleged to show that he would be harmed or killed, or arrested in Pakistan, and the immigration and procedural history, etc. have been set out in the Board’s Decision. It is not necessary for me to restate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted below.

Discussion

4.First of all, the decision of an immigration officer is not a decision that is within the administrative structure susceptible to judicial review once an appeal to the Board is pursued by a claimant (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.). In this case, both the Record of Screening Interview by the Immigration Department dated 14 March 2018 and the Director’s Decision dated 30 May 2018 are not open to challenge. The Record of Screening Interview was considered by the Director in reaching its decision. The Director’s Decision was in turn confirmed by the Board’s Decision.

5.With respect to the Board’s Decision, I am not convinced that the Applicant’s intended challenge, primarily due to the lack of legal representation and language assistance, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

6.It is important to note that a claimant does not have an absolute right to free language assistance at all stages of the proceedings. It could not have been the intention of any authority establishing the principle of high standard of fairness to include the provision of interpretation services whenever an applicant desires or requires them (see Karamjit Singh, CACV 78/2018 (unreported, 2 August 2018)).

7.In addition, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v. Director of Immigration HCAL 51/2007, prescribes that a CAT claimant or 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 (see Re Zafar Muazam, CACV 2/2018 (unreported, 23 March 2018), Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37).

8.On 9 October 2019, the Applicant appeared before the Board to give evidence with the assistance of an interpreter in the Urdu and English languages. It is clear that the Applicant had not raised any complaint about the absence of legal representation before the Board. In fact, it can be seen from the record that:

(1)  When the Applicant lodged the Torture Claim by written representations dated 11 July 2011 and 1 November 2011, he was assisted by the DLS. On 16 July 2012, the Torture Claim was rejected.

(2)  When the Applicant made an application to the Director for non-refoulement protection under the USM by submitting the SCF dated 14 February 2018, he was also assisted by the DLS. On 30 May 2018, the claim was refused.

(3)  The bases of the Applicant’s USM claims and Torture Claim were the same; the only variance was the addition that he had married again in Hong Kong and that his first wife and her family in Pakistan would kill him should he return. There was no evidence to show that there had been a significant change of circumstances since the Torture Claim was finally determined.

9.I remind myself that the Board’s Decision must be rigorously examined and anxiously scrutinized. It is essential to ensure the procedure adopted by the Board met the high standard of fairness. The discussion and consideration of the Grounds, along with the assessment of evidence, etc. were primarily the responsibility of the Board. I am satisfied that the Board had made the findings of fact based on the evidence available, correctly applying the relevant legal principles.

10.The Applicant has not shown any errors of law, procedural unfairness, or irrationality in the Board’s Decision, nor has he identified any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). The Court should not, in these circumstances, usurp the role 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).

Conclusion

11.For the above reasons, I make an order that the Leave Application be dismissed.

Dated the 16^th day of May 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