Khan Zahid v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 153/2022

[2022] HKCA 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2022

(ON APPEAL FROM HCAL NO 203 OF 2019)

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BETWEEN

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Before: Hon Yuen JA and Lisa Wong J in Court

Date of Written Submissions: 8 July 2022

Date of Hearing: 8 August 2022

Date of Judgment: 13 September 2022

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.On 8 April 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 January 2019. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 August 2017.

2.On 21 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision.

3.In compliance with the directions of the Registrar of Civil Appeals given on 31 May 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 8 July 2022.

Background

4.The Applicant is a national of Pakistan. He entered Hong Kong illegally on 6 October 2015 and was arrested by police on the same day. He lodged a non-refoulement claim on 10 October 2015 alleging that if refouled, he will be harmed or killed by his cousins who were members of Pakistan Muslim League (Nawaz) (“PMLN”) due to his refusal to join the PMLN as he is a supporter of Pakistan Tehdreek-e-Insaf (“PTI”). He said the police believed that he had killed two friends who were with him at the time when the three of them were attacked. The factual background of this case is succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 993).

5.By a Notice of Decision dated 31 August 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.The applicant lodged an appeal to the Board against the Director’s decision. The appeal was heard on 2 October 2018 and by the decision dated 8 January 2019, the Board rejected the appeal/petition and confirmed the Director’s decision. Having considered the applicant’s evidence, for the reasons set out at [33] to [42], the Board rejected the applicant’s claim on credibility. There were substantial inconsistencies in the applicant’s evidence given at the hearing that differed substantially in crucial elements from his previous claim submitted to the Director. The prominent examples were that (i) he originally claimed that two of his friends were killed by PMLN supporters [9] but at the hearing, he said it was one [22]; and (ii) in his written claim, he alleged that one of his cousins shot at him and his friends when they were driving in a car [12], but at the hearing he claimed that his cousin shot at him when he was standing at the side of the road with his friends. The applicant’s inability to provide coherent details about the alleged attack by his cousins and the differences between his previous claim and his evidence at the hearing led the Board to find that the incident simply did not occur. Furthermore, relevant country of origin information (“COI”) did not support a claim that a PTI supporter would face a real risk of serious harm at the hands of PMLN supporters and it was not accepted that the applicant’s cousin would harm him wherever he may go in Pakistan. For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.

Decision of the court below

7.On 22 January 2019, the applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board. In his affirmation in support of his application, he complained that the decisions were unreasonable and the Adjudicator and the Director failed to consider all the matters raised in his claim. He further said that the immigration officer did not know the real situation and condition in Pakistan because he had never visited his country. Many asylum seekers died in Hong Kong and many died upon return to their countries. He asked to be allowed to stay in Hong Kong.

8.The applicant attended an oral hearing on 7 February 2022 and by the decision dated 8 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review. The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI 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.”

15. Those grounds above are not valid reasons to challenge the Board’s Decision. The Board can rely on the COI to understand the situation in his country.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

9.On 21 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision. He advanced the following grounds of appeal:

“1-The decisions are unlawful.

2-The Decisions failed to take into account many things and assues (sic).

3-I have life’s danger in my home country Pakistan, so why, I can’t go back the Pakistan. Please help me to save my life.”

10.In his written submissions, he stated that he sought to appeal the decisions made by the Director and the Board. As the Board had undertaken a re-hearing, the relevant grounds are those against the Board’s decision:

(1) The Adjudicator failed to make sufficient enquiry before making the decision.

(2) The Adjudicator stated that the applicant has failed to produce any credible evidence to prove the material elements of his claim. However, as the applicant is a non-refoulement claimant with limited resources to bring evidence before the Board and he is in the custody of the Immigration Department, the Adjudicator had failed to give sufficient chance to him to arrange relevant evidence for his appeal.

11.The applicant further added that he was aggrieved by the decisions of the Director, the Adjudicator and the Court and he urged the Court of Appeal to reconsider his claims.

Legal principles

12.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(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. 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 COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board. 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.

(2) An appeal against the refusal of leave by a judge in 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 not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3) 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

13.The applicant failed in his Notice of Appeal and affirmation to provide any valid grounds of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision. He had nothing to add at the hearing before this court.

14.In his written submissions, he said the Board had failed to make sufficient enquiries, but failed to state what enquiries should have been made. As for his allegation that he did not have sufficient chance to adduce evidence, he has not indicated when (if ever) he asked for time to adduce evidence, and what evidence he would have adduced. In any event, this was not a ground which he had raised in his Form 86 or even when he appeared at the hearing before the judge. As mentioned earlier, the appeal before this Court is not to provide an opportunity for a rehearing.

15.Upon reading the Board’s decision, it is clear that the applicant’s case was rejected for lack of credibility as his evidence was evasive and inconsistent in material aspects and the applicant was unable to explain the discrepancies. As such, the Board found that the incident simply did not occur and the applicant has failed to establish that he will face a real risk of harm or ill-treatment as claimed upon his return to Pakistan. Such findings are within the province of the Board, and we found no error of law or procedural unfairness or other irregularities in the applicant’s case.

16.Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave.

Order

17.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person