Md Mohammad Riaz Alias Bashir Ahmed Alias Chaudhry Mubshar Ahmed Alias Riaz Muhammad Alias Ahmad Nabeel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 163/2023, [2025] HKCA 45

On appeal from [2023] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2023

(ON APPEAL FROM HCAL NO 915 OF 2019)

________________________

________________________

_______________

J U D G M E N T

_______________

Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 5 June 2024 ([2024] HKCA 517). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 16 May 2023 ([2023] HKCFI 1276) dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”). By its decision, the Board refused the applicant’s request for medical examination and dismissed his non-refoulement claim.

2.The applicant is a national of Pakistan. He raised a non-refoulement claim on the basis that if refouled, he would be harmed or killed by members of the management committee of a Sunni mosque, the Pakistani police and people in his home village. His claimed fear of harm originated from his conversion from Sunni Muslim to Ahmadi Muslim. The factual background and the reasons for dismissing the appeal have been set out in the judgment of this court dated 5 June 2024 and will not be repeated.

Questions of great general or public importance

3.In the Amended Notice of Motion filed on 11 November 2024, the applicant stated that the following questions ought to be submitted to the Court of Final Appeal for decision by reason of their great general or public importance:

Question 1:

When assessing a non-refoulement claim, what is the proper approach to directing a ‘medical examination’ under section 37ZC of the Immigration Ordinance, Cap 115 (“the Ordinance”) and/or conducted in accordance with the principles stated in the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, published by the UNHCR (2022 edition) (“Istanbul Protocol”)?

Question 2:

If a non-refoulement claimant is suffering from mental illness which may be relevant to the assessment of his or her evidence concerning the non-refoulement claim, is a decision-maker entitled to (a) refuse to direct a medical examination under section 37ZC of the Ordinance and/or in accordance with the Istanbul Protocol, and (b) eventually reject the claimant’s credibility?

Intended Grounds of Appeal

4.The applicant raised the following intended grounds of appeal:

(1)  The court erred in holding that a medico-legal examination conducted in accordance with the Istanbul Protocol would not likely have provided the Board with evidence capable of supporting the applicant’s case;

(2)  The court erred in failing to apply the well-established principles in international refugee law that a medico-legal report in accordance with the Istanbul Protocol is independent evidence of torture with probative value, and that all relevant evidence, including any such medico-legal report, should be considered ‘in the round’ before the decision-maker is entitled to reach a conclusion on credibility.

Analysis and Disposition

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.The Board and the Director of Immigration have indicated their neutral stance in this application. The applicant lodged written submissions with authorities. After reviewing the materials in the present case, we are of the view that it is appropriate to determine this application on paper without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

7.In the judgment on 5 June 2024, this court found that there is nothing to show how a medical investigation conducted in accordance with the Istanbul Protocol would likely have provided the Board with evidence capable of supporting the applicant’s case that he is genuinely an Ahmadi or a convert, or was perceived as such[1]. We considered that this aspect of the evidence is crucial to the applicant’s claim but it has nothing to do with torture or ill-treatment such that a medical examination might assist to provide “an interpretation as to the probable relationship of the physical and psychological findings to the possible torture or ill-treatment”[2].

8.Counsel for the applicant submitted that the court was wrong in principle as the “totality of evidence”, on which the Board based its finding the applicant’s story that he was an Ahmadi is unbelievable, must include a medico-legal report in accordance with the Istanbul Protocol. With respect, this argument is not supported by any authorities. The relevant principles relied on by the applicant’s counsel are concerned with consideration of the readily available evidence, rather than the obligation of the decision maker to entertain the request of a non-refoulement claimant to arrange a medical examination for the claimant.

9.The applicant’s counsel contended that our decision is contrary to paragraph 265 of the Istanbul Protocol which says that decision makers must not dismiss clinical evidence on the basis of having made a prior negative credibility finding. This part of the protocol should be read together with the preceding part of the same paragraph which states that “decision makers must adequately consider available evidence, particularly clinical evidence, in their decision-making”. We do not consider that the Board’s rejection of the applicant’s request for medical examination is equivalent to the dismissal of a piece of available clinical evidence.

10.Furthermore, this is not a case where the decision maker failed to sufficiently consider the medical evidence adduced by the applicant. In fact, before making its decision, the Board had already duly considered the medical report prepared by Dr Yeung Kam Hing, a psychiatrist of Kowloon Hospital (which shows the medical conditions of the applicant and the treatments he had been receiving, and that he was physically and mentally fit and capable to give instructions to his legal representative for his non-refoulement claim and fit to attend any conference or interview involving substantial periods of questioning and had the ability to respond to questions), together with some other medical evidence submitted by the applicant. None of the authorities relied on by the applicant’s counsel support the proposition that the decision maker has an obligation to arrange such medical examination or to make available for consideration such further medical evidence as requested by the applicant before reaching a conclusion on credibility. The relevant authorities do not support the intended grounds of appeal nor the arguments advanced by the applicant’s counsel in this respect.

11.For the above reasons, we are not satisfied on the merits that there are reasonable prospects of success in any of the intended grounds of appeal in respect of the two questions framed in the Amended Notice of Motion. This is not an appropriate case to submit the questions as framed to the Court of Final Appeal for decision.

12.As it is the well-settled practice to defer the “or otherwise” limb for consideration by the Appeal Committee of the Court of Final Appeal, and there is no good reason to depart from this practice in the present case, it is unnecessary for this court to further consider the applicant’s grounds and arguments in respect of the “or otherwise” limb in the present application.

13.The Notice of Motion filed by the applicant is dismissed.

Mr Francis Ngan and Mr Jonathan Kwok, instructed by Daly & Associates, for the Applicant (Appellant)