Mohammad Waqas Alias Wajid Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 296/2020

[2021] HKCA 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2020

(ON APPEAL FROM HCAL NO 1826 OF 2018)

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Before:  Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission:  23 October 2020

Date of Judgment:  20 January 2021

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 10 July 2020^[1]. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.The applicant is a national of Pakistan.  He first came to Hong Kong as a visitor in 2000 under the identity of “Wajid Ali” and was convicted of breach of condition of stay and later repatriated to Pakistan on 8 January 2002^[2]. He came to Hong Kong again on 17 March 2002 as a visitor under the identity of “Mohammad Waqas”.  According to this identity, his date of birth was 21 April 1980.  He was convicted of theft and breach of condition of stay.  After serving his sentence, he was deported to Pakistan on 29 September 2003. 

3.He came to Hong Kong for the third time and was convicted of unlawful gambling, breach of deportation order and remaining in Hong Kong without authority on 6 November 2006.  After serving his sentence, he lodged a torture claim on 17 March 2007.  He eventually withdrew his torture claim on 21 February 2011 claiming that he had solved his problem in Pakistan.  He departed Hong Kong on 8 March 2011. 

4.The applicant came to Hong Kong for the fourth time in 2016 and surrendered to the Immigration Department on 24 June 2016 under the identity of “Wajid Ali”.  According to this identity, his date of birth was 22 July 1978.  He lodged a non-refoulement claim on 3 August 2016.  He claimed that he would be harmed or killed by Chaudhry Abid Raza (“Chaudhry”), who was from the Pakistan Muslim League (N) (“PMLN”) and a member of the National Assembly in Gujrat, if he is to be returned to Pakistan.  The applicant used to be a member of PMLN for several years but had switched his support to the Pakistan Tehreek-e-Insaf (“PTI”) in 2013 or 2015.

5.The applicant lodged a notice of appeal against the decision of DHCJ Lung on 24 July 2020. He consented to the disposal of his appeal on paper but did not consent to the appeal to be determined by two Justices of Appeal.  Pursuant to the direction of the Registrar of Civil Appeals on 8 October 2020, he lodged his written submission on 23 October 2020.

The Director’s decision

6.By a Notice of Decision dated 3 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6]. 

7.Taking into account the low intensity and frequency of past ill-treatment from Chaudhry, the Director assessed that the level of risk of harm upon the applicant's return to Pakistan is low.  The Director further considered that there is no evidence to suggest that the Pakistani government was involved in any of the attack and threats against the applicant.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

8.The applicant appealed to the Board against the Director’s decision.  The Board conducted an oral hearing on 23 May 2018.  The Board accepted that Chaudhry was elected as a member of the National Assembly in the Pakistani general election in May 2013 and that the Supreme Court issued arrest warrants against him for his involvement in murder in 2015.  However, the Board found a number of significant inconsistencies and omissions in the applicant's evidence and hence did not accept that he was threatened or harmed by Chaudhry or his men or that he was in any way associated with Chaudhry.  The Board found that the applicant fabricated the claimed adverse interest from Chaudhry, the claimed political involvement and the alleged past incidents in an attempt to prolong his stay in Hong Kong.  The applicant could not even state the full name of the political party he claimed he was involved in.  The Board held that there is no real risk of the applicant facing harm from Chaudhry or anyone for reasons relating to his or his family's real or perceived political views, activities or affiliations if he returns to Pakistan.  The Board therefore found that the applicant is not entitled to non-refoulement protection and rejected the appeal on 11 June 2018. 

The intended judicial review

9.The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the decision of the Board.

10.He stated his grounds for his intended judicial review in the exhibit to his supporting affirmation.  He reiterated his fear that he will be exposed to harm from the PMLN and contended that the evidence showed that he had encountered several problems and his life was and still is exposed to danger.

The judge’s decision

11.The applicant appeared at the hearing on 16 October 2019 before DHCJ Lung.  Having considered the circumstances and the evidence, the judge did not accept the applicant's allegations against the Board raised at the hearing which are not mentioned in his supporting affirmation.  In any event, the judge rejected the allegations as he found them extraordinary and incredible^[7]. The judge held that the applicant failed to show he has any reasonable prospect of success in his intended judicial review and dismissed the leave application on 10 July 2020.

Grounds of appeal

12.The applicant stated as his ground of appeal in the notice of appeal there was procedural unfairness in his case.

13.His grounds as stated in his written submission may be summarized as follows:

(1)  the Director's finding is belied by the evidence on record; and

(2)  the Board failed to conduct a fair hearing.  It ignored the overwhelming proof that the applicant's life is critically threatened.

Legal Principles

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

15.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 issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and 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.

16.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

17.The applicant’s grounds of appeal are not viable for this court to reverse the judge's decision.  In particular, he failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

18.Furthermore, he failed to provide evidence to challenge the Board’s findings against him or to explain the significance inconsistencies or problems in his evidence which were identified and analysed in detail in the Board’s decision.  He has not shown there are any errors of law or procedural unfairness or irrationality in the decision of the Board.

19.For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.

The Applicant (Appellant), acting in person