Mahmood Khalid and Another v. Torture Claims Appeal Board

CACV 272/2024, [2025] HKCA 204

On Appeal From [2024] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2024

(ON APPEAL FROM HCAL NO 662 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the 2^nd Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 25 June 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 June 2022, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 22 August 2018.

2.The Court dismissed the 1^st Applicant’s appeal on 25 November 2024 by reason of his failure to comply with an unless order of the Court concerning the lodgement of appeal bundles. This leaves the 2^nd Applicant’s appeal outstanding for determination.

BACKGROUND

3.The 1^st and 2^nd Applicants are nationals of Pakistan. The 2^nd Applicant, a minor, is the daughter of the 1^st Applicant.

4.The 1^st Applicant claimed to have entered Hong Kong illegally on 2 June 2011. He was arrested by the police on 3 June 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that, if refouled, he would be harmed or killed by a member (Gulam Hussain Busal) of the Pakistan Muslim League Nawaz (“PML(N)”) in his home district because he was a supporter of the All Pakistan Muslim League (“APML”), a political rival of PML(N). His torture claim[1] was rejected by the Director on 24 August 2012. He did not appeal against the Director’s rejection of the torture claim. On 21 August 2013, the 1^st Applicant raised a subsequent claim on the same factual basis, which was taken as a non-refoulement claim to be assessed on all applicable grounds other than the risk of torture.

5.While his non-refoulement claim was under assessment, the 1^st Applicant married an Indonesian woman (“the Mother”) on 22 September 2014 in Hong Kong. The Mother was also a non-refoulement claimant. The Mother gave birth to two children in Hong Kong, namely a son on 20 December 2012, and the 2^nd Applicant on 26 October 2015. They are both children of the 1^st Applicant.

6.In 2018, the 1^st Applicant raised a non-refoulement claim on behalf of the 2^nd Applicant, and a further non-refourlement on his own behalf. The 1^st Applicant requested the claims to be assessed jointly. Their claims were made on the basis that, if refouled, they would be harmed or killed by the 1^st Applicant’s family and the family of his maternal cousin (Fauzia) because he was supposed to marry Fauzia in Pakistan under a prearranged marriage, but had married the Mother instead in Hong Kong. Details of the Applicants’ claims have been summarised by the Judge at §§1-7 of the CALL-1 Form.

7.By a Notice of Decision dated 22 August 2018, the Director dismissed both Applicants’ non-refoulement claims on all relevant and applicable grounds: the risk of torture (for the 2^nd Applicant only), BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

8.The Applicants appealed the Director’s decision to the Board. The Board heard the appeal on 16 December 2019 and 21 October 2021. At the hearing before the Board on 21 October 2021, the 2^nd Applicant was represented by counsel, and the 1^st Applicant and the Mother gave oral evidence.

9.On 24 June 2022, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §11 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies discrepancies and implausibility in [1^st Applicant (‘A1’)]’s evidence as to his political involvement in APML that it rejected the credibility of his claim of fear of harm from those PML(N) supporters as fabrications that it is not accepted that he is at any risk of harm of any kind from those PML(N) supporters due to his alleged political activity, that even accepting that he was a low-level activist with APML prior to his departure of Pakistan in 2011 that he was only involved in minimal activity he was engaged in the party and with the passage of time and the changed political landscape in Pakistan since his departure that PML(N) is no longer the ruling government that it is not accepted that A1 would still be at risk of harm in his home district due to his past political activity, while the credibility of his claim of risk of harm from his family or Fauzia’s family over his failure to honour his engagement to Fauzia and instead married [2^nd Applicant (‘A2’)]’s mother was also severely affected by material inconsistencies discrepancies and vagueness of his evidence as well as long passage of time lapsed that it is also not accepted that even if there were anger from his family or Fauzia’s family that such risk still exists or that any such threats from them were ever intended to be acted upon in the past or in future, while for the same reasons that it is not accepted that A2 will face any risk of any harm from either family of A1 or of Fauzia, while her lawyer’s argument on her behalf that her removal to Pakistan with her father would deprive her from her mother as her main care giver and her brother would not give rise to non-refoulement rights or obligations as held by the Court of Final Appeal in the case of Comilang & Ors v Director of Immigration [2019] HKCFAR 10, or that any such harm would not amount to persecution or under any other applicable grounds, and that relevant [country of origin information (‘COI’)] indicate that various government departments and NGOs will be available to assist and support A2 to adapt to life in Pakistan without any risk of any harm from anyone upon her return with her father to Pakistan that the claims for non-refoulement protection of both A1 and A2 failed on all applicable grounds.”

THE JUDGE’S DECISION

10.On 25 July 2022, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In a document titled “Ground of Appeal” for the Applicants as attached to the 1^st Applicant’s supporting affirmation filed on the same date, he asserted that because he failed to marry Fauzia as arranged by his family, his life would be in danger if he returned to his home country. He stated that his children were in need of his care in Hong Kong. He asserted that he would not get any protection from the government in his home country, and internal relocation was not an option for him. He also said that he did not have any knowledge of Hong Kong law.

11.On 25 June 2024, the Judge gave his decision refusing to grant leave to the Applicants to apply for judicial review, for the following reasons:

“[14] In the Applicants’ case, the Board rejected their respective claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing both the A1 and A2’s mother in their oral evidence and answers to questions raised of their claims as well as submissions from A2’s lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

[15] Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harms in the Applicants’ claims even if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford either of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526

[16] I am of course mindful of the fact that A2 is still a minor at her present age of 8 years old and was without legal representation in her present leave application before the Court as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and hence it would be necessary to separately consider and examine whether her claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases but which might not be properly advanced to the Court in her leave application due to lack of legal representation or of any error of law or procedural unfairness which might have been committed by the Board in her appeal against the Director’s decision, an approach held to be necessary as laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of any adult may do so in the case of a child.

[17] In the present case, A2 was however represented by her own lawyer from DLS in her appeal before the Board during which her parents did also give evidence and make representations of her claim separately for her based on her own personal circumstances specific to her as a child born outside Pakistan to a Pakistani father and an Indonesian mother who has been her primary care giver and that she has been receiving education in Hong Kong, of which the Board did properly and separately consider in its decision as noted above, and while A2 was without legal representation in these proceedings after her application for Legal Aid had somehow been refused, I am unable to see any potential minor-specific non-refoulement basis which her lawyer might have failed to raise on her behalf to the Board during her appeal hearing or any error of law in the Board’s decision upon close scrutiny. In the circumstances, I shall treat the absence of legal representation for A2 in these proceedings as a mere irregularity, as it would not serve any purpose for her to be so represented given the lack of merits in her intended judicial review (see Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, as discussed in [57] of Fabio Arlyn Timogan.

[18] 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 claim of either A1 or A2.”

THIS APPEAL

12.In their Notice of Appeal filed on 9 July 2024, the Applicants merely stated that they wanted to appeal.

13.The Applicants have failed to lodge appeal bundle contrary to the directions given by the Registrar of Civil Appeals on 15 October 2024 and, as mentioned above, contrary to an unless order made on 11 November 2024.

DISCUSSION

14.The 2^nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment.

15.In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim in relation to his failure to marry Fauzia. The Board found that the 1^st Applicant’s evidence regarding the harm from his family and Fauzia’s family was vague and self-contradictory (see Board’s Decision at §105). Having considered the evidence of the 1^st Applicant and the Mother, the Board did not accept that there would be any real risk of harm from the 1^st Applicant’s family or village, or from Fauzia’s family to the 2^nd Applicant upon refoulement (see the Board’s Decision at §§122-125). The Board also considered the issue of nationality of the 2^nd Applicant, and proceeded on the basis that she was a citizen of Pakistan as put by or on behalf of the 2^nd Applicant, who was legally represented before the Board (see the Board’s Decision at §§16, 50 and 112). Having considered the submissions from the 2^nd Applicant’s counsel, the Board came to the view that the 2^nd Applicant being separated from the Mother and her brother to live with the 1^st Applicant in Pakistan, an environment alien to her, did not amount to any applicable risks that would warrant non-refoulement protection in Hong Kong for her (see the Board’s Decision at §§113-121). As mentioned by the Judge in his decision at §17, the Board had plainly considered the 2^nd Applicant’s case separately having regard to her own personal circumstances. We do not see that the Board or the Judge erred in principle or approach, and cannot see any ground to intervene in the Judge’s decision to reject the 2^nd Applicant’s application for leave to apply for judicial review.

16.There is no viable ground of appeal against the Judge’s Order raised by or on behalf of the 2^nd Applicant.

17.The 2^nd Applicant’s intended judicial review is not reasonably arguable. So is her appeal against the Judge’s decision. Accordingly, we dismiss the 2^nd Applicant’s appeal.

18.For the avoidance of doubt, we shall treat the non-compliance with Order 80, Rule 2 of the Rules of High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.

The 1^st and 2^nd Applicants, acting in person