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

CACV 110/2021

[2021] HKCA 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 110 OF 2021

(ON AN APPEAL FROM HCAL NO 1241 OF 2018)

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Before: Hon Kwan VP and Barma JA in Court

Date of Judgment: 27 September 2021

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 8 March 2021, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim and dismissed the leave application[1]. The applicant filed a Notice of Appeal against the said decision on 19 March 2021.

2.The applicant is a national of Pakistan.  He is 50 years old.  He had previously been convicted of the offence of overstaying and was sentenced to two months’ imprisonment in Hong Kong in 1994.  He was then repatriated to Pakistan in 1995.  He was arrested in Hong Kong again on 22 September 2015.  He claimed that he left Pakistan for China in November or December 2011 and subsequently entered Hong Kong by boat illegally.  He lodged his non-refoulement claim on 12 November 2015 on the basis that he will be harmed or killed by members of the Pakistan Muslim League (“PML(N)”) if he returns to Pakistan.

3.The applicant has consented to the disposal of this appeal on paper by the Court of Appeal but has not filed a supplemental notice of appeal or lodged written submissions as directed by the Registrar of Civil Appeals on 6 May 2021.  This appeal is dealt with by two judges pursuant to section 34B(4)(ac) of the High Court Ordinance, Cap 4.  We do so on the basis of the documents placed before us in the court files.

The Director’s decision

4.By a Notice of Decision dated 2 June 2017, the Director of Immigration (“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]. 

5.Taking into account the low intensity and frequency of the alleged past ill-treatments the applicant faced from the PML(N) members, the Director assessed that the level of future risk of harm upon the applicant’s return is low.  The Director further found that the applicant’s problem was caused by a private dispute.  The Director also held that the availability of state protection and internal relocation alternatives would further lower or negate the perceived risk.

The Board’s decision

6.The applicant’s appeal against the Director’s decision was heard before the Board on 27 October 2017.  The Board found that the applicant is not a witness of truth as his oral evidence was remarkably vague, lacking in appropriate detail and there were material differences in his evidence for which he was unable to provide any plausible explanation.  The Board rejected the applicant’s claims that he has experienced any harm previously and concluded that the applicant failed to establish a well‑founded fear of risk of harm.  Thus, the Board rejected the appeal on 23 February 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 3 July 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was filed outside of the three-month requirement under Order 53, rule 4 of the Rules of the High Court, Cap 4A.

8.He only stated in his supporting affirmation that he was not satisfied with the Board’s decision and that he cannot go back to his home country because his life is still in danger, without putting forward any specific grounds against the Board’s decision.

The judge’s decision

9.DHCJ K W Lung decided the application on paper as the applicant did not request for an oral hearing. 

10.The judge considered there is no evidence or anything specific in support of the applicant’s grounds.  The judge held there is no error of law or procedural unfairness in the Board’s decision and there is no evidence to show that the applicant has any reasonable chance of success in his intended judicial review.  Therefore, the judge refused to extend time for the applicant to file his application for leave to apply for judicial review and dismissed the leave application on 8 March 2021.

Grounds of appeal

11.The applicant stated in the Notice of Appeal filed on 19 March 2021 that he cannot go back to Pakistan because his life will be in great peril. 

Legal Principles

12.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.

13.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.The ground stated in the applicant’s Notice of Appeal is just a bare assertion without particulars or evidence in support.  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. 

15.As the appeal is devoid of merit, we dismiss it accordingly.

The Applicant, acting in person