Rasool Nayyar Ghulam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2276/2020

[2025] HKCFI 5246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2276 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;

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

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 only 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 18 November 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 23 October 2020 (the “Board’s Decision”).

2.In the Form, the Applicant named both the Director of Immigration (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 in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.The Applicant requested an oral hearing for the application. The hearing took place on 9 September 2025 and the Applicant attended in person. At the hearing, the Applicant said he had already stated all the grounds in the documents. He further claimed that his hand was injured, and the situation in his country is not favourable. The Applicant said he will go back when things get settled down. Apart from the aforesaid, the Applicant had nothing to say in respect of the Leave Application.

Background

4.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

5.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)

6.The Applicant did not provide any grounds in the Form in support of the Leave Application.

7.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.

8.First, in §12 of the supporting Affirmation, the Applicant appeared to seek leave to apply for judicial review against both the Board’s Decision and the decision of the Director below dated 11 September 2018. The Director’s said 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.

9.Second, the Applicant repeatedly 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. I further note that at the hearing before the Board on 21 November 2019, the Applicant was assisted by an interpreter in the Urdu/Pakistani Punjabi and English languages (§4 of the Board’s Decision).

10.In so far as the Applicant complained that the Board’s Decision was not translated to him, as mentioned by the Court of Appeal, the Applicant is not entitled to translation or interpretation service whenever he required. If the Applicant contends that he does not understand the Board’s Decision because of the lack of translation, it cries out for an explanation as to how he can then allege that the Board’s Decision was erroneous.

11.Third, 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 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. Before the Board, he was given a fair opportunity to present and clarify his case with the assistance of an interpreter. 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 before the Board, the Applicant did not raise this “lack of legal assistance” argument.

12.Further, as pointed out by the Applicant in §10 of the supporting Affirmation, the duty lawyer had actually advised the Applicant that there were no merits in the appeal against the Director’s decision. That was the reason why the duty lawyer did not continue to represent the Applicant before the Board. The Applicant decided to proceed with the appeal notwithstanding such legal advice. It is accordingly unreasonable for him to complain about the lack of legal representation in the appeal process or before the Board.

13.Fourthly, the Applicant claimed that the COI was selective and failed to address the negative aspects, especially the corruption issue in “India” (§17 of the supporting Affirmation). The Applicant is from Pakistan, and the alleged corruption in India has nothing to do with the Applicant’s claims. Even assuming that the reference to India was a mistake, the complaint is still devoid of merits. It should be noted that the Board was not satisfied that the account provided by the Applicant of the reasons why he left Pakistan and why he fears return are credible. Accordingly, the Board did not accept that there is a real risk that the Applicant would face any of the proscribed forms of harm should he return to Pakistan (§§57-61 of the Board’s Decision). In the light of such findings, any alleged corruption in Pakistan would not have affected the outcome of the case. It should also be noted that the Applicant could have adduced any further COI materials if he wished to.

14.In so far as the Applicant complained that the Board had failed to consider or give sufficient weight to some COI materials, the Applicant has failed to provide sufficient particulars and identify such materials.

15.Fifthly, the Applicant seemed to suggest (in §20 of the supporting Affirmation) that the Board had failed to provide adequate reasons for its decision. Such contention is wholly without merits, as the Board’s Decision was comprehensive with adequate reasons provided. The Board had clearly explained the evidence it accepted and the evidence it refused with reasons provided.

16.The Applicant has also made some other complaints in the supporting Affirmation, but they all lack particulars and elaboration. Such bare assertions do not assist the Applicant in the Leave Application.

17.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. As mentioned above, the Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled, and indeed correct in my view, to come to the conclusions it did (§§36-66 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.

18.I also do not consider what the Applicant said at the hearing on 9 September 2025 as mentioned above to be relevant to the Leave Application. In so far as the Applicant claimed that he suffered injury to his hand, that had already been taken into account by the Board (§§31 & 53 of the Board’s Decision).

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.

Dated the 7^th day of November 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