Ahmad Adnam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 311/2023, [2024] HKCA 3

On Appeal From [2023] HKCFI 2407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2023

(ON APPEAL FROM HCAL NO. 331 OF 2019)

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JUDGMENT

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Hon Anthony Chan J (giving the Judgment of the Court) :

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 27 September 2023[1] by which the Court refused the application of the Applicant for leave to apply for judicial review against: (a) two decisions of the Director of Immigration (“Director”) dated respectively 27 February 2015 and 2 February 2017; and (b) the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 1 February 2019. In that decision of the Board, it upheld the second decision of the Director dated 2 February 2017 which rejected the Applicant’s non-refoulement claim.

Background

2.The Applicant is a national of Pakistan born in 1989. He claimed to have arrived in Hong Kong illegally through Shenzhen, Mainland China on 1 November 2009. On 2 November 2009, the Applicant was arrested by the police for illegal remaining and referred to the Immigration Department for further investigation on 5 November 2009. He lodged a torture claim by way of written representation on 7 November 2009, and a claim for non-refoulement protection by claim form dated 21 January 2014 and supplementary claim form dated 12 November 2014. The Applicant’s claim was made on the basis that if he returned to Pakistan, his paternal uncle, Iqbal Ahmad (“Iqbal”), his friend Shaukat (a local administrator) and a police officer nicknamed “Jalad” would torture and/or kill him due to a dispute over the Applicant’s refusal to sell a piece of land to Iqbal. The factual background of the Applicant’s claim was set out at [24] to [27] of the Board’s decision dated 1 February 2019.

3.By a notice of decision dated 27 February 2015, the Director assessed the Applicant’s claim on the grounds of BOR 3 risk,[2] persecution risk[3] and torture risk[4] and determined it against him.

4.The Applicant appealed to the Board against the Director’s decision dated 27 February 2015. An oral hearing was scheduled to be held on 19 November 2015, but the Applicant failed to attend the hearing. On the same date, the Board gave the Applicant written notice of its intention to determine the appeal in his absence and invited the Applicant to submit written explanation of his absence together with supporting documentary evidence within 7 days. The Board did not receive any response from the Applicant, and proceeded to determine the appeal. Due to the absence of the Applicant at the hearing and the lack of evidence to support his claim, the Board was unable to decide on the credibility of the Applicant’s case and unable to assess the risks of refoulement to Pakistan. By its written decision dated 3 May 2016, the Board dismissed the Applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision dated 27 February 2015. This decision of the Board was not the subject matter of the Applicant’s application for leave to apply for judicial review.

5.By notice of decision dated 2 February 2017, the Director further assessed the Applicant’s claim in relation to the ground of BOR 2 risk[5] and determined it against him.

6.The Applicant appealed to the Board against the Director’s decision dated 2 February 2017. An oral hearing was held on 3 December 2018, during which the Applicant gave evidence and answered questions from the Board. At the oral hearing, the Applicant said that his father still held the title of the land; Iqbal thought all along that the title was in the Applicant’s name; Iqbal caused trouble to the Applicant’s father in order to make the Applicant transfer the land; the Applicant’s family moved to Karachi to avoid Iqbal; Iqbal would not receive title of the land if he killed the Applicant; Iqbal now had physical possession of the land; and any transfer of the land would have to involve the Applicant’s father. In favour of the Applicant, the Board accepted that an attempt at a forced sale of land was “credible enough”, and the use of violence by the police in Punjab was not unheard of. It was plausible that Iqbal had arranged a policeman friend to torture the Applicant in order to make him sell his property to him. However, on examination, the Board found obvious flaws in the Applicant’s claim, including that Iqbal, with his connections to local authorities, would surely have been able to clarify the true legal ownership of the land.

7.The Board proceeded to consider the risk of harm faced by the Applicant if he was refouled to Pakistan. It found that the Applicant did not face any real risk of harm or any real risk of being killed by Iqbal if he returned to Pakistan, because Iqbal was already in physical possession of the land and would not need to apply any force until the true legal owner attempted to recover the land and, even if the Applicant did face a risk from Iqbal, he could avoid the risk by living in Karachi as his father had done.

8.In conclusion, the Board held that the Applicant did not face any real risk of arbitrary deprivation of life in the event of refoulement to Pakistan. By its written decision dated 1 February 2019, the Board dismissed the Applicant’s appeal in respect of the BOR 2 ground and confirmed the Director’s decision dated 2 February 2017.

The Judge’s decision

9.On 4 February 2019, the Applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decisions dated 27 February 2015 and 2 February 2017 respectively and the Board’s decision dated 1 February 2019. The grounds for judicial review were attached to the Form 86 and can be briefly summarized as repeating the basis of the Applicant’s claim for non-refoulement, that the immigration officer had never visited Paskistan and did not know the real situation there, that many other asylum seekers were killed after they were sent back to their home countries by the Director, and that BOR 3 right is absolute. In the accompanying affirmation, the Applicant briefly stated that the decisions were unreasonable, the decision makers had failed to take into account all matters raised in his claim and the Board’s decision dated 1 February 2019 was annexed to the affirmation. The Applicant lodged written submissions to the Court below under his letter dated 23 March 2021.

10.An oral hearing was fixed to be held on 27 September 2023, but the Applicant was absent without notice to the Court. The Judge considered the application on the basis of the available materials in the absence of the Applicant. On 27 September 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review. The Judge noted that the Applicant did not seek judicial review of the Board’s first decision dated 3 May 2016. However, the Judge found that the Board erred in simply rejecting the Applicant’s claim without finding the primary facts in the claim. On the other hand, the Judge took the view that the Board’s decision dated 1 February 2019 had overcome the defects of its earlier decision. The reasons were set out in [35] to [40] of the Form CALL-1 as follows :

“The Board’s finding in the Board’s first Decision

35. The Board’s decisions in the Board’s First Decision have no factual basis because it failed to find the primary fact of the claim. The fact that the applicant has the burden of proof for his claim and that he had failed to give evidence to the Board by his absence only show that the Board was unable to clarify some factual issues in his claim. It is up to the Board to explain in the Board’s First Decision why the credibility in relation to those factual issues would undermine the factual basis of the applicant’s claim, which the Board has failed to do.

36. For the reasons above, the Board’s First Decision is tainted with error in law and Wednesbury unreasonableness.

The defects in the Board’s First Decision had been overcome by the Board’s hearing for the appeal against the Director’s Second Decision

37. It seems obvious that when the Board considered the appeal against the Director’s Second Decision, the adjudicator considered that he had to make a finding on the primary fact, which he had not done in the Board’s First Decision, for the assessment of the Director’s Second Decision. This might be the reason for the Board to convene a hearing, in which he had made extensive enquiries on the facts of the claim.

38. In the hearing, the Board had conducted enquiries into the facts of the claim relating to all applicable risks and had made findings of the fact against the applicant as shown in paragraph 19, supra. The Board was entitled to form its views as it had done. The findings have therefore overcome the defects as found in the Board’s First Decision, based upon which, the Board had rightly made its decisions in the Board’s Second Decision.

39. Those grounds in paragraph 22 do not assist the applicant. It is not necessary for the immigration officer or the adjudicator to go to Pakistan to understand the situation there. They are entitled to rely on the country of origin information. The other grounds are either his personal opinions without any evidence in support or stating the law, which do not support his application.

40. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Second Decision.”

Appeal to this Court

11.On 10 October 2023, the Applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal are:

“(1) The decisions are unlawful.

(2) The Decisions failed to take into account many things and [i]ssues.

(3) I have life’s danger in my home country Indonesia[6], so why, I can’t go back to my Home Country. Please help me to save my life.”

12.The Applicant lodged his written submissions on 13 November 2023. Those submissions consisted of general statements of legal principles, the basis for his non-refoulement claim and criticisms of the Director and the Board. The Applicant submitted that the immigration officer never visited Pakistan, so he did not know the real situation there and many asylum seekers had been killed when they were sent back to their home countries by the Director. He further submitted that the Director failed to consider or give proper weight to the presence of state acquiescence, the presence of collusion amongst police and public officials, the COI[7] material indicating police ineffectiveness and corruption, and corruption and incompetence of the administration of the Applicant’s home country. In addition, the Applicant submitted that the Director failed to attain a high standard of fairness. Furthermore, the adjudicator failed to make sufficient enquiry with the Applicant and did not allow him to arrange for relevant supporting evidence.

13.At the hearing, the Applicant had nothing further to add. Accordingly, we determine this appeal on the basis of the written materials before the Court.

Discussion

14.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.In respect of the Applicant’s intended judicial review against the decisions of the Director, the Judge correctly held at [4] of the Court’s decision that :

“The applicant’s application for leave for judicial review of the Director’s Decisions fails in limine and must be dismissed as the applicant had appealed the Director’s Decisions to the Board. Re: Moshsin Ali [2018] HKCA 549.”

16.As regards the factual basis of the Appellant’s claim, the Board found that there was no real risk of harm upon refoulement as alleged, because Iqbal would not likely target the Applicant as he already had physical possession of the land. Even if the Applicant faced any risk from Iqbal, the Board found that internal relocation to Karachi was possible as the Applicant’s father had done to avoid Iqbal. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The grounds of appeal relied upon by the Applicant consist of general assertions regarding the decision of the Board without particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

17.The Applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

18.The Applicant’s appeal is accordingly dismissed.

The Applicant appeared in person