Siddique Muhammad Amir v. Torture Claims Appeal Board

CACV 492/2021

[2022] HKCA 1329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 492 OF 2021

(ON APPEAL FROM HCAL NO 3294 OF 2019)

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BETWEEN

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Before:  Hon Chow JA and Lisa Wong J in Court

Date of Judgment:  15 September 2022

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J U D G M E N T

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

1.This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 25 October 2021 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 30 October 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 2 August 2018.

BACKGROUND

2.The Applicant is a Pakistani national.  He arrived in Hong Kong on 25 October 2013 with permission to remain as a visitor.  His limit of stay was subsequently extended up to 15 November 2013.  He did not, however, depart after the expiry of his limit of stay.  On 30 March 2016, he surrendered himself to the Immigration Department.  He lodged a non-refoulement claim by two written representations dated 29 September 2016 and 25 October 2016, and submitted a Non-refoulement Claim Form on 11 June 2018.  The Applicant claimed that if he was refouled back to Pakistan, he would be at risk of being harmed or killed by the local supporters of a political party known as Pakistan Muslim League (Q)  because he supported a rival political party known as Pakistan Peoples Party.  Details of the Applicant’s claim have been summarised by the Judge at §§1-2 of the CALL-1 Form ([2021] HKCFI 3190).

3.By a Notice of Decision dated 2 August 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

4.On 15 August 2018, the Applicant lodged an appeal against the Director’s Decision to the Board.  On 12 July 2019, the Board heard the appeal.  On 30 October 2019, the Board gave a decision dismissing the Applicant’s appeal and affirming the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §6 of the CALL-1 Form, as follows:

“In its decision the Board found many aspects of the Applicant’s evidence of his claim inconsistent and defy logic that it did not find the centerpiece of his claim credible and rejected his alleged fear of harm from those local PML(Q)  supporters upon his return to Pakistan, that in any event in the absence of any official involvement that state or police protection would be available to him as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.On 5 November 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  The Applicant provided no ground for seeking relief in the Form 86.  In his supporting affirmation filed on 5 November 2019, the Applicant stated that he did not agree with the decision of the Board, his life would be in danger in Pakistan, and he did not want to go back to his home country.

6.On 5 May 2021, the Applicant filed an affirmation requesting to “close” his application as he had compromised his dispute with his enemy and he wanted to return to his home country.  His request was acceded to by Deputy High Court Judge To, who directed that the Applicant’s application be withdrawn (see §§8-9 of the CALL-1 Form).  However, on 22 July 2021, the Applicant issued a summons for leave to “restore” his leave application on the ground that his life would still be in danger in his home country due to the current political situation in Pakistan.  The Judge allowed the application for leave to apply for judicial review to be reinstated (see §§10-11 of the CALL-1 Form).

7.On 25 October 2021, the Judge gave a decision refusing to grant leave to the Applicant to apply for judicial review.  The Judge’s reasons for his decision are set out at §§11-16 of the CALL-1 Form, as follows:

“[11] … as noted above no reasonably arguable grounds have been put forth by the Applicant in his Form 86 or his supporting affirmation for his intended challenge of the Board’s decision, nor was he able to do so at the hearing other than a regurgitation of his claim that it is still dangerous for him to return to his home country as his enemy has since his departure become even more powerful, while he has formed a new family in Hong Kong that he does not wish to leave.

[12] As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge for judicial review.

[14] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 34 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[15] Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[16] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

8.In his Notice of Appeal dated 8 November 2021, the Applicant stated as follows:

“… the grounds of this appeal are that the [Applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

9.The Applicant has failed to lodge his skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 25 November 2021.  Accordingly, the Applicant is deemed to have waived his right to have an oral hearing of the appeal and elected to have his appeal disposed of on paper.

DISCUSSION

10.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

11.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 25 October 2021, and has failed to raise any viable ground of appeal against the Order.

13.The Applicant’s appeal has no merits and is dismissed, with no order as to costs.