Bashir Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 249/2020

[2021] HKCA 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 249 OF 2020

(ON APPEAL FROM HCAL NO 1798 OF 2018)

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Before: Hon Kwan VP, E Toh and G Lam JJ in Court

Date of Hearing:  5 January 2021

Date of Judgment: 8 January 2021

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 30 June 2020[1] refusing to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in relation to his non‑refoulement protection claim.

2.The applicant is a national of Pakistan.  He is 33 years old.  He came to Hong Kong illegally on 6 February 2016 and surrendered to the Immigration Department on 12 February 2016.  He lodged a non‑refoulement claim on 10 August 2016.  His claim was made on the basis that he would be harmed or killed by Yasir who is a member of the Pakistan Muslim League (N) in pursuit of a personal vendetta.  The applicant said that he reported Yasir’s theft of their common employer’s goods as a result of which Yasir was dismissed.

The Director’s decision

3.By a Notice of Decision dated 6 September 2017, the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk,[2] BOR 2 risk,[3] BOR 3 risk[4] and persecution risk.[5] 

4.Taking into account the nature, frequency and intensity of the past ill‑treatment from Yasir, the Director of Immigration (“Director”) considered that the severity of injuries inflicted by Yasir had not attained the relevant minimum level for non‑refoulement protection to be warranted.  The Director found that there was no ground to believe that there was any real and substantial risk of the applicant being harmed or killed by Yasir upon his return to Pakistan.  There was nothing to show that the state was involved in the applicant’s dispute with Yasir, and Yasir did not have the status of a public official.  The Director also considered that the availability of state protection and internal relocation option further lowered or negated the perceived risk of harm.   

The Board’s decision

5.The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 31 May 2018.  The Board considered that Yasir only wanted the applicant to leave his employment, and there was insufficient evidence to establish the risk of severe harm or ill‑treatment upon refoulement.[6]  The applicant was unable to show any form of state instigation or acquiescence.[7] The claimed fear only arose from a personal dispute.[8]  The Board assessed that effective state protection would be available and internal relocation would be viable.[9]  The applicant also admitted to the Board that if he stayed away from Yasir and his hometown, he would be safe.[10]  In the result, the Board held that the applicant failed to establish a real likelihood of risk pertinent to any of the applicable grounds in his claim, and rejected the appeal on 24 August 2018. 

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 31 August 2018 to seek leave to apply for judicial review against the decision of the Board.  In the affirmation the applicant set out a list of grounds for his intended challenge, but the grounds were simply listed as catchphrases without particulars or substantiation.  They may be grouped together as follows:

(1)  There is no reasonable basis to reject his credibility.

(2)  The Board failed to consider the extended form of state acquiescence, failed to consider whether there is a consistent system of human right violations and if state protection exists in Pakistan.  The Board failed to fully consider the country of origin information.  There is no proper basis for the consideration of internal relocation.

(3)  The decision‑maker was different from the interviewing officer.

(4)  The Board failed to place weight on relevant information and/or selectively placed weight on irrelevant information or inaccurate/incorrect facts.

(5)  The Board failed to call for psychological and/or psychiatric reports and/or evaluation.

(6)  The Board applied an incorrect standard of proof.

(7)  He has fear of death if he returns to his home country.

The judge’s decision

7.The applicant was absent at the hearing before the judge scheduled on 14 November 2019 without any notice or explanation.  His application was therefore dealt with on the papers.  The judge considered that the applicant’s grounds are not supported by evidence and particulars.  Some of the grounds are not relevant to the findings of the Board.  There was nothing to show that the Board erred in the application of the law to the applicant’s case.  As the applicant had not shown any reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 30 June 2020.

The appeal to the Court of Appeal

8.In his Notice of Appeal filed on 8 July 2020, the applicant stated as his ground of appeal that the gravity of his circumstances has not been weighed or realized by the Board and Director while considering his claim and he should be given an opportunity to plead his case properly.

9.In his written submissions for the appeal lodged on 24 November 2020, the applicant set out certain quotations from various legal authorities stressing that high standards of fairness are required in the determination of a torture claim, but did not explain how they apply to his case.  He also submitted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility, but did not particularise any alleged unfairness.

10.At the hearing of the appeal before us, the applicant confirmed that he had nothing to add to the written materials supplied. 

Discussion

11.The general principles regarding an appeal in a case such as the present have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

(1)  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.  While in non‑refoulement cases the court will adopt a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

12.The applicant’s grounds of appeal are bare general assertions without particulars, elaboration or evidence in support.  He has not put forward any viable ground to impugn the judge’s decision.  He has failed to demonstrate that the judge made any error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

13.Further, the Board considered that the applicant had given a detailed and coherent description of the circumstances leading to his departure of his country and did not take issue with his credibility.[11]  Its decision was not, as explained above, based on rejecting his evidence of what happened, but on the nature of the dispute and the courses available to him.  The applicant has failed to provide any substantiated ground in his Form 86 or otherwise to impugn the material findings in the Board’s decision.  There is nothing to show that he did not have a proper opportunity to advance his claim before the immigration officer and the Board.  Nor is there any basis to suggest that the Board erred in law in not recognising the gravity of the applicant’s complaints.  The fact remains that it was a private dispute, that Yasir was not a government official or a particularly powerful person in Pakistan, and that there was state protection and in any event, as admitted by the applicant to the Board, he would be safe if he relocated to an area away from Yasir.

14.We can see no ground for disturbing the judge’s conclusion that there is no reasonable prospect of success in the intended application for judicial review. 

15.For these reasons, the appeal is dismissed.

[1]   [2020] HKCFI 1375.

[2]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]   This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5]   This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6]   §35.

[7]   §37.

[8]   §57.

[9]   §§48 & 53.

[10]  §51.

[11]  §30 TCAB.