Irfan Muhammad v. Torture Claims Appeal Board

CACV 435/2023, [2024] HKCA 533

On Appeal From [2023] HKCFI 3298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 435 OF 2023

(ON APPEAL FROM HCAL NO 3835 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 18 December 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 December 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 August 2019 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Pakistani national born in 1975.  He entered Hong Kong illegally from Mainland China on 26 June 2019 and was arrested by the police on the same date.  The applicant submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on 27 June 2019.  The applicant’s claim was made on the basis that if he was returned to Pakistan, his paternal cousin (Kurshid) would harm or kill him due to a land dispute.  The factual background of the applicant’s claim was set out at [2] to [26] of the Board’s decision.

3.By notice of decision dated 29 August 2019, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 26 November 2019, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the Board found that the applicant provided answers that were contradictory to his previous evidence given to the Immigration Department.  Also, it found that the logic of the applicant’s claims of events were non-sensical, implausible, unbelievable and unnatural. For example, the applicant gave contradictory and implausible evidence about his cousin’s colleagues uttering threats to him to give them his land or about how he claimed his cousin had hired hitmen to kill him but he still exposed himself unnecessarily by walking outside his aunt’s place.  Therefore, the Board found that material aspects of the applicant’s claim were incredible and unreliable, which would mean his appeal should be dismissed.

5.Even on the assumption that the applicant’s evidence was accepted, the Board found there was in fact no real risk of harm if the applicant returned to Pakistan, because it was a localized risk and internal relocation was viable, the dispute was purely personal and private with no state involvement, and the level of risk of harm did not reach the requisite level of severity.

6.In conclusion, the Board held that the applicant’s evidence was unreliable and there was no real risk of harm for the applicant in the event of refoulement to Pakistan.  By its written decision dated 19 December 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.On 23 December 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  His grounds for judicial review included that the decisions of the Director and the Board were wrong and unreasonable; that human rights should be considered in light of deportation; that the Director failed to give weight to state acquiescence; that the Board acted unreasonably by placing heavier reliance on country of origin information (“COI”) instead of the applicant’s personal experience; that the Director failed to place sufficient weight on COI showing the police’s inability to protect; that the Director showed unfair attitude in failing to give sufficient weight to the corruption and incompetency of the state administration; that the Director failed to attain a high standard of fairness; that the Board acted in a procedurally improper and/or unfair manner in assessing the applicant’s credibility and unreasonably required the applicant to reply on the spot; that the Board failed to take into account the political link of the applicant’s persecution; and that the Board’s decision was irrational.  In the accompanying affirmation, he simply annexed the Director’s decision.

8.The Judge considered the application on the basis of the documents and the submissions made by the applicant during an oral hearing on 5 December 2023.  On 18 December 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [12] to [16] of the Form CALL-1 as follows:

“ 12. These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator place too much reliance on COI or wrongly apply them or that the Adjudicator act procedurally unfair or unreasonable, or what relevancy were State Acquiescence or extra-judicial killings or torture by state enforcement agencies or nexus of political parties or corruption to the Applicant’s case when on the factual basis of even his own case that it was a private family dispute between him and his cousin without any state or official involvement. As such I do not find any of these grounds reasonably arguable for the Applicant’s intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application either.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

15. 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.

16. For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

Appeal to this Court

9.On 28 December 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Director and the Board failed to fairly take into account his unique situation, that the Director and the Board erred by failing to conduct a specific and individual assessment of his claim, that the Director and the Board failed to analyse the substance of his claim relying on their own world view instead, that there was no evaluation of the risk specific to him in light of his particular vulnerabilities, that the mere presence of legal representation at the stage before the Director would not guarantee that personal specific risks were properly advanced and considered, that the Director appeared to accept that he would be in danger if refouled to Pakistan and yet failed to analyse such impact, that he would be subject to safety risk, and that the Judge’s decision to refuse judicial review did not meet the high standard of fairness required.  The applicant did not provide any particulars of what personal specific risks pertained in relation to him.

10.The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.The applicant has lodged written submissions in which he merely stated the basis of his non-refoulement claim and his dissatisfaction with the Judge’s decision. 

Discussion

12.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, 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.

13.In the present case, the Board found the applicant’s claim and evidence to be incredible.  Even if it accepted the applicant’s evidence, there was no real risk of harm upon refoulement as alleged, because it was a purely personal and private dispute with no state involvement and internal relocation was a viable option.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.Equally, 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.  His notice of appeal consists mostly of general and vague criticisms of the Director’s and the Board’s decisions, and asserts without particulars that the Judge’s decision did not meet the high standard of fairness required.  Such general assertions are not sufficient to impugn the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.    

15.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person