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

CACV 354/2022

[2023] HKCA 25

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2022

(ON APPEAL FROM HCAL NO 1122 OF 2019)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Hon Fung J (giving the Judgment of the Court):

1.The Applicant Muhammad Jamil is appealing against the decision of DHCJ KW Lung dated 15 August 2022 refusing to grant leave to issue judicial review against the decision of the Torture Claims Appeal Board (Board)  dated 15 April 2019.

Background

2.The Applicant is a national of Pakistan.  He was born in 1965.  He entered Hong Kong illegally on 22 July 2007 and was arrested by the police on 22 March 2008. 

3.On 16 October 2008, he lodged a torture claim on the basis that he would be harmed or killed by his creditor if he were to return to Pakistan.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim by the Director of Immigration (Director)  pursuant to all relevant grounds of the torture risks under Part VIIC of the Immigration Ordinance (Cap. 115); violation of the right to life under Article 2 of the Hong Kong Bill of Rights (BOR2); torture or cruel, inhuman and degrading treatment or punishment (CIDTP)  under Article 3 of the Hong Kong Bill of Rights (BOR3); and the persecution risk under Article 33 of the Refugee Convention 1951.

Director’s Decision

4.By a Notice of Decision dated 30 January 2015, the Director rejected the Applicant’s non-refoulement claim on the torture risk, BOR 3 risk and persecution risk.

5.The Director found that there was no evidence to suggest that the creditor was related to any government officials or acting in any official capacity.  The Applicant’s problem was private in nature and had nothing to do with the State.  The alleged ill-treatment failed to attain the minimal level of severity.  The Applicant alleged his shop was burnt down by the creditor but there was no evidence to support it. Taking into account the nature, low intensity and frequency of the alleged ill-treatment from the creditor, the Director assessed that the level of future risk of harm upon the Applicant’s return was low.  The Director also held that the availability of state protection and internal relocation alternatives would further lower or negate the perceived risk.

6.By a Notice of Further Decision dated 17 May 2017, the Director rejected the Applicant’s claim on BOR 2 risk in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim.  

The Board’s decisions

7.On 18 January 2019, the Applicant’s appeal against the Director’s decisions was heard before the Board.  In view of the lack of documentary evidence concerning the alleged loan and the significant inconsistencies in the Applicant’s evidence, the Board found that the Applicant had fabricated his claims in order to extend his stay in Hong Kong.  In particular, there was no documentary evidence for the business loan and the Applicant did not even remember how much he had repaid to the creditor.  The Board further held that the Applicant was able to move to other parts of Pakistan upon his return, and the Board did not accept that the Pakistani police or authorities will not provide him with protection.  The Board concluded that there was not a real risk that the Applicant would face any harm should he return to Pakistan for the reasons as claimed.  Thus, the Board dismissed the appeal on 15 April 2019.

The Intended  Judicial Review

8.On 26 April 2019, the Applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review.  Although he named the Immigration Department as the proposed respondent, he indicated that he sought to review the decision made on 15 April 2019, which was actually the decision made by the Board.  Form 86 was amended to the effect that the Board was the proposed respondent and the Director was an interested party. The Applicant stated in his supporting affirmation that the Immigration Department disregarded his dangerous situation without providing any particulars or elaboration.

The Judge’s Decision

9.DHCJ KW Lung decided the leave application on paper as the Applicant did not request for an oral hearing. 

10.The Judge held that there was no error of law or procedural unfairness in the Board’s decision.  As the Applicant failed to show any realistic prospect of success in his intended judicial review, the leave application was dismissed on 15 August 2022.

Grounds of Appeal

11.The Applicant filed a Notice of Appeal against the Judge’s decision on 31 August 2022.  The ground stated therein was that the Court has done injustice.  In his written submissions, he submitted that all decisions were wrong and the Court only said it did not find any error.  He contended that he did not get justice from the Court.

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 Applicant’s grounds and submissions that he did not get justice are just bare assertions without elaboration or evidence in support.  In particular, while the Applicant submitted that it is laughable and unjust as the court did not find any error in the Board’s decision, the Applicant did not point out any particular error of the Board’s decision nor did he put forward any evidence to refute the Board’s findings.  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.Therefore, the appeal is devoid of merit and should be dismissed.

The Applicant (Appellant), acting in person