Haq Muhammad Rizwan Ul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2304/2020 on BabelCite. This High Court CFI judgment was delivered on 12 November 2025.
1. By Form 86 filed on 23 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 17 November 2020 (the “ Board’s Decision ”).
Cites 5 cases
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HCAL 2304/2020 [2025] HKCFI 5384 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2304 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
Observations for the Applicant: Introduction 1.By Form 86 filed on 23 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 17 November 2020 (the “Board’s Decision”). 2.In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant did not name any 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 Leave Application. The hearing took place on 9 September 2025 and the Applicant attended in person. At the hearing, I refer the Applicant to the extensive grounds submitted by the Applicant. The Applicant however indicated that the grounds were prepared by his friend. I then asked him the point he wished to make in respect of the article he had submitted. The Applicant said it showed the situation in Pakistan, and that nobody could get security and protection there. Apart from the aforesaid, the Applicant indicated that he 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 the Board’s earlier decision dated 29 December 2016 (the “Board’s Earlier Decision”), and it is not necessary for me to repeat the same here. The hyperlinks to the Board’s Decision[1] and the Board’s Earlier Decision[2] are 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 support of the Leave Application in the Form. In the supporting Affirmation, the Applicant attached the following documents in support of the Leave Application:-
7.I have thoroughly considered all the grounds and submissions of the Applicant. I have also considered the article submitted. For the reasons explained below, I do not consider the grounds and submissions put forward by the Applicant assist him in the Leave Application. 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). Therefore, I do not consider it necessary to set out all the grounds and submissions relied upon by the Applicant, but will briefly deal with them hereinbelow. 8.To start with, it is necessary to understand the nature of the Board’s Decision, the subject matter of the intended judicial review. The Board’s Decision was only concerned with Article 2 of the Hong Kong Bill of Rights (“BOR 2”). The Applicant’s claims based on risk of torture, Article 3 of the Hong Kong Bill of Rights, and risk of persecution had already been refused by both the Director and the Board (i.e. the Board’s Earlier Decision) before, and there has been no further challenge to those decisions (§§2-3 of the Board’s Decision). 9.It is equally important to understand that after the Board’s Earlier Decision, the Director had issued a letter to the Applicant and invited him to submit additional facts, if any, which he considered relevant to his claims under BOR 2. However, no additional materials or facts were submitted by the Applicant (§3 of the Board’s Decision). As a result, the Board only needed to assess the facts and information previously submitted by the Applicant and considered by the Board in the Board’s Earlier Decision, and determine whether those facts establish a risk under BOR 2. 10.The grounds and submissions of the Applicant should be considered in the light of the aforesaid. 11.I first deal with the points made in the Applicant’s “Skeleton Submission”. 12.The first point made by the Applicant is the alleged change of circumstances in Pakistan. The Applicant said his enemies have made a fake murder case against him. The Applicant claimed that such new circumstances had not been taken into consideration before. I have no hesitation in rejecting such argument. First, there is no evidence in support of the alleged new murder claim against him. Second, even if there is indeed such new claim, the proper course for the Applicant to take is to file a subsequent claim under section 37ZO of the Immigration Ordinance (Cap. 115) based on the alleged change of circumstances, rather than applying for judicial review against the Board’s Decision. The challenge to the Board’s Decision based on the alleged change of circumstances is plainly misconceived. 13.The second point made by the Applicant is that he complained that the Board did not provide him with the hearing bundles, and did not hold a hearing before determining the case. There is again no merit in such contention. As I have pointed out above, the Board’s Decision was in relation to BOR 2 risk only. Since no additional evidence had been submitted by the Applicant following the Board’s Earlier Decision, the Board was entitled, and indeed correct, not to hold a hearing and proceed to decide the appeal on papers (§§15-16 of the Board’s Decision). Accordingly, there was no need to have another set of hearing bundles. In any event, the Applicant should have been provided hearing bundles for the hearing held on 9 September 2015 before. The Applicant is not complaining that he has missed any of the documents. There is no error committed by the Board in this regard. 14.The Applicant then complained that the Board had failed to give sufficient weight to the extended concept of state acquiescence, and had failed to obtain high standards of fairness required by the Wednesbury test as the Applicant was not legally represented. The Applicant also complained that the Board had failed to make a sufficient inquiry before finalizing the decision. All these complaints lack particulars. Fundamentally, the Applicant has failed to identify the precise error allegedly committed by the Board. I have considered the Board’s Decision, together with the Board’s Earlier Decision in detail. I do not consider that the Board had erred as alleged by the Applicant. 15.The Applicant also contended that the Director and/or the Board had failed to advise the Applicant to obtain medical reports. It is not clear what medical reports the Applicant was referring to and their relevance. In any event, the burden is on the Applicant to submit all relevant evidence in support of his claims. The Applicant was legally represented before the Board and the Director initially. The Director and the Board were under no duty to advise the Applicant on the evidence. 16.I now turn to the Applicant’s “Grounds on which Relief is sought”. 17.The grounds put forward in this document are poorly organized. It is clear that the drafter simply put forward all case authorities and points without considering whether they are relevant in the context of the present case. I have considered the points made therein carefully, including the authorities cited. I do not consider any of the points meritorious. I shall briefly explain hereinbelow. 18.First, the Applicant contended that the Board had erred by failing to maintain the high standard of fairness by not holding an oral hearing allowing the Applicant to put forward his case. I have already addressed this point in §13 above. The Applicant was given full opportunity to present additional facts and information but had failed to do so. Further, I note that in the Notice of Appeal / Petition filed by the Applicant on 13 July 2017, the Applicant neither complained about the lack of hearing before the Director below (concerning BOR 2 risk), nor requested an oral hearing before the Board. 19.Second, the Applicant had cited a number of cases. Most of them are not relevant in the context of the present case. As mentioned above, the Board’s Decision was only in relation to BOR 2. As such, cases regarding risk of torture is not relevant. For completeness, I should mention that the Board had cited and applied the correct legal principles in the Board’s Decision regarding BOR 2 risk. 20.Third, the Applicant complained that the Board’s Decision was Wednesbury unreasonable. I have considered the Board’s Decision together with the Board’s Earlier Decision. The Board was clearly entitled, and indeed correct, to come to the conclusions it did. I do not consider that the Board’s Decision was unreasonable, and the Applicant has not provided particulars in support of such general and bare assertion. 21.The Applicant also cited some cases on exercise of discretion and on delay. It is not clear how such cases are relevant to the present Leave Application. There was no application for adjournment before the Board to gather further evidence. In fact, the Applicant did not file any additional information or evidence despite being invited to do so. 22.The Applicant then alleged 9 further grounds in support of the Leave Application, which can generally be summarized as follows:-
23.I do not consider these points meritorious. In respect of point (1), there was no misdirection on law in the Board’s Decision as alleged by the Applicant. As mentioned above, the Board’s Decision is not concerned with risk of torture. 24.Points (2) to (6), and (8) can be dealt with together. The complaints simply lack particulars. Further, in the light of the nature of the Board’s Decision (which was only in relation to BOR 2), the Applicant has failed to explain the relevance of the complaints. It should further be noted that in the Board’s Earlier Decision, the Board had already found that the Applicant had failed to establish credibility in his evidence, and that the Board was not satisfied that there is risk for the Applicant to return to Pakistan (§§44-46 of the Board’s Earlier Decision). The grounds relied upon by the Applicant should be considered in the light of such findings. I also fail to see how the Board could be said to have applied incorrect standard of proof. 25.Point (7) is equally unmeritorious. If the Applicant wished to adduce medical reports in support of his claims, he could have done so. The Board had no duty to request such reports. 26.In respect of Point (9), 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 previously legally represented. He was also given a chance to adduce further evidence but had failed to do so. I do not find anything amiss arising from the alleged lack of legal representation in the process leading to the Board’s Decision. 27.Lastly, in relation to the article attached to the supporting Affirmation, I do not consider that it assists the Applicant’s Leave Application. As the Board had pointed out, in the context of the present case, there is no evidence showing that the Applicant was a criminal wanted by the police in Pakistan. There is also no evidence showing that the Applicant was going to face serious charge or punishment in Pakistan (§22 of the Board’s Decision). In the Board’s Earlier Decision, the Board had already found that the Applicant had failed to establish credibility in his evidence, and that the Board was not satisfied that there is risk for the Applicant to return to Pakistan (§§44-46 of the Board’s Earlier Decision). Having considered both decisions in detail, I am of the view that the Board was entitled to conclude that there is no risk under BOR 2. 28.In short, having considered the Board’s Decision together with the Board’s Earlier Decision, I do not find any error of law, procedural unfairness or irrationality in the Board’s Decision. 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 had provided adequate reasons in support of its decision. The Board was entitled, and indeed correct, to reject the claim based on the evidence. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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. In coming to this conclusion, I have thoroughly considered all the grounds and submissions relied upon by the Applicant. Conclusion 29.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed. Dated the 12th 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
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Cases cited in this judgment