Azeem Muhammad v. Torture Claims Appeal Board

CACV 327/2023, [2024] HKCA 11

On Appeal from [2023] HKCFI 2595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 327 OF 2023

(ON APPEAL FROM HCAL NO 288 OF 2019)

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BETWEEN

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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 the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 10 October 2023 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 28 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 22 January 2018 rejecting his non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 11 March 2016.  On 14 March 2016, the Applicant surrendered himself to the Immigration Department, and raised a non-refoulement claim on the basis that if he were refouled, he would be harmed or killed by his cousin over some property dispute within their family.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 22 January 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decision to the Board.  On 28 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Judge summarised the Board’s Decision at §8 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his cousin that caused him to flee his home country to come to Hong Kong for protection, and that in any event if the risk were real that it arose from essentially a private land dispute between them within their family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country 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 30 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he raised various grounds of intended judicial review, which the Judge summarized at §9 of the CALL-1 Form, as follows:

“(1)  That the decision revealed no reasonable basis for rejecting the credibility of the Applicant’s claim;

(2)  That the Board failed to consider the extended form of State Acquiescence in the Applicant’s claim;

(3)  That the Board failed to fully consider the COI reports in assessing risk to the Applicant in his home country;

(4)  That it was procedurally irregular that the decision-maker is a different person from the interviewing officer;

(5)  That it was procedural impropriety or unfairness in the Board’s failing to investigate into the relevant COI of Pakistan;

(6)  That it was irrational of the Board to fail to place weight on relevant information instead selectively place weight on irrelevant information;

(7)  That it was irrational of the Board to fail to consider a consistent system of human rights violations;

(8)  That it was irrational of the Board to fail to consider if state protection exists in Pakistan;

(9)  That it was irrational of the Board to place weight on irrelevant matters or on inaccurate or incorrect facts;

(10)  That it was procedural impropriety in the Board’s failure to call for psychological and/or psychiatric reports or evaluations;

(11)  That it was procedural impropriety of the Board to apply the incorrect standard of proof; and

(12)  That there was no proper basis for the Board to consider that internal relocation is available to the Applicant.”

6.As pointed out by the Judge at §10 of the CALL-1 Form, these were all broad and vague assertions made by the Applicant without any relevant or necessary particulars or specifics or elaborations as to how they applied to his case, or how the Board erred in its decision, or failed to apply the correct standard of proof, or failed to take into account of relevant Country of Origin Information (“COI”), or selectively or improperly relied on irrelevant COI, or how state acquiescence was relevant to the Applicant’s claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case.

7.On 30 August 2023, the Judge refused to the Applicant leave to apply for judicial review for the following reasons:

“[12] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding of his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 89 in 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.

[13] The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real 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.

[14]  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 filed on 18 October 2023, the Applicant advanced the following ground of appeal:

“The High Court dismissed my application for leave. I do not agree with the High Court Judgement. My objection was very simple. That was Adjudicator did not act correctly. He did not give me enough time. I asked me some question which question have no relation with my claim. I failed to answer those question so he dismissed my claim. This process is totally wrong. If any one read my claim and read the questionair he can realised my statement true or not. I request to the Court of Appeal to grant my leave.” [sic]

9.On 18 October 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.In his written submissions dated 1 November 2023, the Applicant repeated his fear of being refouled back to Pakistan and complained that the Board made many errors, but failed to provide any particulars in support of his bare assertion.  He also complained about the absence of any oral hearing of his application for leave to apply for judicial review.

DISCUSSION

11.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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

13.The Applicant’s complaint about the absence of any oral hearing of his application for leave to apply for judicial review has plainly no foundation.  The Applicant in fact attended an oral hearing before the Judge on 19 September 2023.  At the hearing, he told the Judge that he had set out his intended grounds for judicial review in writing, and had nothing further to add.

14.The Applicant has failed to show any error in the Judge’s decision refusing to grant leave to apply for judicial review.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

15.The Applicant’s appeal against the Order has no merit and is dismissed.

The Applicant, acting in person