Nawaz Rab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 491/2022

[2023] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 491 OF 2022

(ON APPEAL FROM HCAL NO 2505 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (the “Judge”)  given on 13 December 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (the “Board” and the “Board’s Decision”)  dated 18 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  dated 9 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He was born in 1972 in a village in Attock District in Punjab, Pakistan.  His religion is Sunni Muslim.  After graduating from college, he worked on his family’s chicken farm until he left Pakistan in October 2015.  His parents are deceased and his siblings live in Pakistan. He entered Hong Kong illegally on 26 October 2015 and was arrested by the police the following day.  He made a non-refoulement claim by way of a written representation on 30 October 2015. 

3.The applicant claims that, if he returns to Pakistan, he will be harmed or killed by members of an Islamist terrorist group called Lashkar-e-Jhangvi (“LeJ”)  because he is a liberal Muslim which LeJ aims to eradicate.  He claimed that he was active on Facebook and would comment on and like various posts that interested him, but his Facebook activities have provoked LeJ because his comments were contrary to Islam.  He claimed that he had received threatening phone calls in January 2013 from an unidentified member of LeJ, and in the following month he was almost shot to death by two members of LeJ when he was on his way home on his motorcycle.  He did not report the shooting incident to the police.  He stayed home thereafter and had continued to receive threatening phone calls.  He decided to leave Pakistan after he learned that the Home Minister of Punjab was assassinated by LeJ in August 2015.  The details of the applicant’s claim are set out by the Board at [21] to [39] in the Board’s Decision, and summarised by the Judge at [4] and [5] of the Form CALL-1.

The Director’s Decision

4.By a Notice of Decision dated 9 January 2018, the Director rejected the applicant’s claim on all applicable grounds on BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5].  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by members of the LeJ upon his return to Pakistan; that reasonable state protection was available to him and internal relocation was an option open to him. 

The Board’s Decision

5.The applicant appealed to the Board and a hearing took place on 30 August 2018 where the applicant was assisted by an interpreter in the Urdu language.  On 18 October 2018, the Board dismissed the appeal. 

6.In its decision, the Board considered the legal principles of the applicable grounds on non-refoulement protection, and summarised the accounts of the applicant given to the Immigration Department and his oral evidence at the hearing before the Board. 

7.The Board found that, apart from the fact that the applicant is a Sunni Muslim whilst the terrorist group LeJ targets Shi’ite Muslims according to the available country of origin information (COI), there were significant areas of divergence between his account given to the Immigration Department and his oral evidence before the Board, and he was not able to give any reasonable explanation for those differences which seriously undermines his credibility.  His evidence about the events in Pakistan are implausible as he did not sufficiently explain why he had omitted to mention important events such as his visits to the madrassa and the threats made upon him there and that he had been threatened prior to the shooting incident in 2013 about the television channels he might watch on his satellite television, even though the applicant was legally represented throughout the departmental process.  The inconsistent account he provided as to the shooting incident also raised doubt as to the veracity of his claim.  Furthermore, he was able to live in his own home unharmed between February 2013 and October 2015. 

8.The Board took into account all the evidence and concluded that the applicant has fabricated and concocted his evidence to advance a claim for non-refoulement protection.  These findings were further strengthened by the fact that the applicant was not able to show the Board any posts or comments on his Facebook account, despite claiming that he was still making statements against extremists in Pakistan on his new Facebook page.  The applicant failed to satisfy the threshold of the level of risks required for non-refoulement protection.

The Judge’s Decision

9.The applicant filed a Form 86 on 8 November 2018 for leave to apply for judicial review of the Board’s Decision.  In his supporting affirmation of the same date, the applicant asked the Court to review the decision of the Immigration Department as they have disregarded his dangerous situation.

10.The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

11.After summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge stated at [12] to [19] of the Form CALL-1[6]:

“12. In his affirmation in support of his application, the applicant said he is not satisfied with the Immigration Department’s decision as they disregarded his dangerous situation.

DISCUSSION

13. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14. The Court will bear in mind that the Board’s Decisions (sic)  should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The reason in paragraph 12 above is not a valid reason to challenge the Board’s Decision.

17. 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.

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

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

12.The applicant filed a Notice of Appeal on 23 December 2022 to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal:

“the [appellant] 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 recognized, 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.”

13.The written submissions lodged on 6 February 2023 put forward the following arguments:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection.  Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan [2014] 4 HKLRD 277[7].

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions. 

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134]. 

14.At the hearing of the appeal, the applicant added that the situation in Pakistan is even worse now as the Taliban is active.  Some of his friends were threatened by them and left where they lived.

Discussion

15.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].  They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was 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 and/or the process by which the decision was made.

(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.  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.

16.In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits.  Our reasons are as follows:

(1)  The applicant fails to identify any error in the Judge’s decision.  His complaints in the Notice of Appeal and written submissions are directed solely at the Board’s Decision. 

(2)  The applicant’s complaint about the Board’s use of and reliance on COI is vague and devoid of particulars.  The applicant did not state in particular which source of information relied upon by the Board was incorrect, outdated or based on hearsay, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.

(3)  We do not accept that the Board has made groundless speculations based on any outdated COI or on the evidence of the applicant.  Contrary to the applicant’s assertions, the Board has, in assessing whether the applicant was a target of the extremist group LeJ, acknowledged that the LeJ was a sectarian extremist group which has been responsible for numerous terrorist attacks in Pakistan upon consideration of the available COI.  The Board has also given credence to reports which confirmed that the Punjab Home Minister was assassinated in a suicide bomb attack in his political office in Attock in August 2015[8]. 

(4)  The complaint in the written submissions that the Board did not approach the appeal as a rehearing is factually incorrect.  It is evident from the Board’s Decision that the rejection of the applicant’s claim was primarily based on the implausibility of the applicant’s evidence, where the Board has comprehensively analysed the accounts of the applicant and gave reasons for rejecting them.  It did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified. 

(5)  The applicant has not explained how the cases and legal principles cited in his written submissions relate or apply to his case or appeal. 

(6)  The applicant’s assertion that he will face hardship if he returns to his home country cannot stand in light of the Board’s rejection of his claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision-maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. 

(7)  The applicant’s further submission on the activities of the Taliban added no weight to his claims as this was not a ground relied on by him before the Director or the Board and it is not open for him to introduce new grounds before this Court.

17.For the reasons given above, none of the arguments raised in the Notice of Appeal and the applicant’s submissions can amount to arguable ground for the intended judicial review.  In the circumstances, there is no proper basis for this Court to interfere with the Judge’s refusal of the application for leave to apply for judicial review.

18.Having considered the materials before us, we agree with the Judge that there is no error of law or procedural unfairness in the decision of the Board, that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused. 

Order

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

The Applicant appeared in person.