Maqsood Ahmad v. Torture Claims Appeal Board

CACV 421/2023, [2024] HKCA 794

On Appeal From [2023] HKCFI 3242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 421 OF 2023

(ON APPEAL FROM HCAL NO 356 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 14 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 25 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan born in 1976.  He first entered Hong Kong on 13 March 2002 and was permitted to remain as a visitor until 27 March 2002.  He overstayed and was later repatriated to Pakistan on 9 August 2005.  The applicant departed from Pakistan to Mainland China on the strength of his Pakistani passport on 25 December 2005.  He last entered Hong Kong on 21 February 2006 with a forged Indian passport and was permitted to remain as a visitor for 2 weeks.  He did not leave and was later arrested on 8 September 2006.  The applicant raised written representations for torture claim dated 7 November 2006 and for non-refoulement protection dated 19 April 2013 and 1 May 2013.  The applicant’s claim was made on the basis that if he returned to Pakistan, an officer of the Pakistan army (Major Mushtaq) or his people would harm or kill him due to the applicant’s murder of the officer’s son.  The factual background of the applicant’s claim was set out at [3.1] to [3.4] of the Board’s decision dated 25 January 2019.

3.By notice of decision dated 23 January 2013, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against him.

4.The applicant appealed to the Board against the Director’s decision dated 23 January 2013 and the appeal was determined without a hearing.  After assessment of all the evidence, information and materials submitted by the applicant, the Board found that the applicant failed to show any substantial grounds of any risk of torture if he was refouled to his country.  By its written decision dated 22 March 2013 (as corrected by Corrigendum dated 21 September 2020), the Board dismissed the applicant’s appeal in respect of torture risk and confirmed the Director’s decision dated 23 January 2013.

5.By notice of decision dated 11 May 2018, the Director assessed the applicant’s claim in relation to all remaining applicable risks and determined it against him as well.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]

6.The applicant also appealed to the Board against the Director’s decision dated 11 May 2018.  An oral hearing was held on 12 December 2018, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant submitted very vague details for his alleged incidents.  The Board found that the applicant’s allegation of the occurrence of incidents were only bare assertions.  It also found that the applicant displayed many instances of dishonesty and that there were matters casting doubt on his claim, including using a forged passport to enter Hong Kong, procuring a visa by deception, working illegally in Hong Kong, not raising a claim as soon as he arrived in Hong Kong but only after arrest, and illegally overstaying for over 3 years in his first trip to Hong Kong.  These issues significantly affected the applicant’s credibility and reliability.  Overall, the Board found the applicant to be dishonest and unreliable.

7.In conclusion, the Board found that the applicant failed to establish his case.  By its written decision dated 25 January 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision dated 11 May 2018.

The Judge’s decisions in the court below

8.On 8 February 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 dated 25 January 2019.  He did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation, he     repeated the basis of his claim for non-refoulement protection and stated that he was married in Hong Kong in the course of applying for a visa.  He also annexed the Board’s decision dated 25 January 2019 and the Director’s decision dated 11 May 2018.

9.An oral hearing was held on 21 November 2023 and, aside from confirmation of the content of his submitted papers, the applicant submitted that the risks in his home country still exist and that he was married to a Hong Kong resident.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions.  On 14 December 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 13. On 8 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such 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 reasonably arguable basis for his intended challenge or any merits in his intended application.

14. 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.

15. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his credibility for the through and detailed analysis and reasoning set out in paragraphs 5 – 6 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 findings of the Board.

16. Furthermore, the fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.

18. 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 leave application.”

Appeal to this Court

10.On 19 December 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Director, the Board and the Judge failed to give weight to State acquiescence in his case, that the Board failed to make sufficient enquiry, that the Director’s reference to relevant COI showed an unfair attitude and that he was not given an opportunity to plead his case properly. 

11.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.

12.The applicant has lodged written submissions in which he recited legal principles relating to the high standards of fairness applicable and Wednesbury unreasonableness. He further submitted without any elaboration that the Board acted in a procedurally unfair manner by not properly assessing the applicant’s credibility.

Discussion

13.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.

14.In the present case, the Board found that the applicant was dishonest and unreliable having regard to the reasons set out in its decision, and accordingly found that the applicant failed to establish his case.  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 high standards of fairness, it consists of mere general and bald assertions regarding the decisions of the Director, the Board and the Court without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

15.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.  We are not satisfied that there is any error in the Judge’s decision.    

16.The applicant’s appeal is accordingly dismissed.

17.This decision concerns of course only the applicant’s claim for non-refoulement protection, and does not in any way deal with his application to the Director for permission to stay in Hong Kong as the spouse of a Hong Kong permanent resident.

The Applicant, unrepresented, acting in person