Haider Muhammad Usman Alias Malik Muhammad Osman Hayadar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 263/2023，[2024] HKCA 12

On Appeal From [2023] HKCFI 2043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2023

(ON APPEAL FROM HCAL NO 1124 OF 2019)

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J U D G M E N T

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

1.This is an appeal by the Applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 15 August 2023, by which the Deputy Judge refused the Applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2043).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 15 April 2019 (“the Board’s Decision”), dismissing the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 June 2018 rejecting the Applicant’s non-refoulement claim.

3.The appeal was originally fixed to be heard on 5 December 2023. However, on 22 November 2023, the Applicant filed a Request for Dismissal of Appeal in relation to the said appeal. Accordingly, by the directions of Au JA dated 23 November 2023, the said hearing was vacated.

4.On the basis of his request for dismissal of the appeal on 22 November 2023 alone, we dismiss the Applicant’s appeal. But in any event, his appeal also fails for the lack of merits, which we will explain further below.

Background

5.The Applicant is a national of Pakistan. He entered Hong Kong illegally on 19 April 2009 and was arrested by the police on the same day. He raised a torture claim which was subsequently rejected on 8 November 2013. On 18 February 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his stepmother and her brother because of a dispute with his stepmother over his father’s properties. While the Applicant was in Hong Kong, his father died in 2011 and his stepmother took over his father’s estate. Factual details of the Applicant’s claim were summarised by the Deputy Judge at [4] to [5] of the Leave Decision.

6.By a Notice of Decision dated 15 June 2018 (“the Director’s Decision”), the Director rejected the Applicant’s non‑refoulement claim. His decision covered all applicable grounds other than torture risk[1], namely, BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

7.The Applicant then appealed against the Director’s Decision to the Board on 25 June 2018. The Applicant attended a hearing before the Board on 29 January 2019 and was assisted by an interpreter qualified in the Punjabi and English languages. Having assessed and considered the totality of the evidence, while the Board found the Applicant’s account of the property dispute with his stepmother was largely plausible despite some minor inconsistencies, the Board also noted some significant discrepancies in the Applicant’s evidence which undermined the credibility of the Applicant’s claim, principally in relation to the Applicant’s claimed attempted kidnapping incident. Overall, the Board found that the Applicant’s claim lacked credibility. In any event, internal relocation to other parts of Pakistan where he would not be at risk of harm from his stepmother was a viable option for the Applicant. Accordingly, the Board rejected his non-refoulement claim on all applicable grounds and dismissed his appeal.

The Leave Decision

8.On 26 April 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s Decision. In his Form 86, the Applicant did not state any ground of review. In his supporting affirmation, he only stated that the Immigration Department disregarded his dangerous situation. As the Applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

9.By the Leave Decision, the Deputy Judge refused to grant leave to the Applicant to apply for judicial review. His reasons were set out at [13] to [19] of the Leave Decision:

“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 Decision 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 Board did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is no 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.”

The Appeal

10.On 21 August 2023, the Applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

11.The Applicant lodged his skeleton argument on 7 November 2023. In that document, the Applicant claimed that he could not be protected by the state and that Pakistan had long been fraught with human rights problems. He asserted that the police had been well known for corruption and ineffectiveness and that the Country of Origin Information stated by the Board was without understanding the cultural context in Pakistan in that security forces remained unaccountable for human rights violations and exercised disproportionate political influence over civilian authorities. He also asserted that as a Muslim country, Pakistan is still heavily communal and it would be easy to detect and track down another person who will very likely be killed. Lastly, the Applicant submitted that procedural error in failing to understand the case and examining it based on the local context could cause a case to be misjudged and lead to an erroneous outcome.

12.As mentioned above, by a Request for Dismissal of Appeal dated 22 November 2023, the Applicant requested to withdraw the present appeal.

Discussion

13.The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.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. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an Applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.At the outset, all of the Applicant’s assertions are bare contentions. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or skeleton argument did the Applicant identify with particulars how the Deputy Judge had erred in reaching the Leave Decision. His submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.

16.Importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that 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) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

17.In the present case, based on the evaluation of the evidence before it, the Board found that the Applicant failed to demonstrate that he would be at risk of harm if refouled. It also found that internal relocation would reasonably be available to him. The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law, procedural unfairness or irrationality in the decision of the Board. There is no basis for us to interfere with the Leave Decision.

18.For the above reasons, the Applicant’s appeal has no merits and is dismissed.

The Applicant acting in person