Re Muhammad Umair

CACV 368/2024, [2025] HKCA 308

On appeal from [2024] HKCFI 2257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 368 OF 2024

(ON APPEAL FROM HCAL NO. 204 OF 2022)

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 12 September 2024[1] refusing leave to the applicant to apply for judicial review against the decision dated 25 February 2022 of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decision dated 20 August 2021 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim.

The applicant’s claim

2.The applicant is a national of Pakistan, aged 34. He entered Hong Kong illegally on 3 November 2019.  On 27 August 2020, he was arrested by the Customs and Excise Department and was charged with an offence under the Dutiable Commodities Ordinance Cap.109.  On 9 November 2020, he was further charged with an immigration offence and was subsequently convicted and sentenced to 10 months’ imprisonment.  On 16 March 2021, while the applicant was serving his sentence, he lodged a claim for non-refoulement protection.

3.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the Chaudry Khan Family as he and his family belonged to the Kashmiri minority ethnic group and had been subjected to oppression by the Chaudry group for years. The details of his claim were set out at [6]-[42] of the Board’s decision.  

4.According to the applicant, the Chaudry group is politically and financially influential in Rawalpindi, Pakistan. The applicant and his family were migrants and members of the Kashmini minority ethnic group. Over the years, the Chaudry group had assaulted and harassed the applicant and his family members and targeted their properties in a series of events. These events included the attack on the applicant’s four brothers in 1994/1995 causing severe head injuries to one of his brothers, the stabbing in 1999 of his uncle who refused to give up his grocery shop to them, and had since left the country for Spain as a refugee and the shop was transferred to the applicant, the beating and shooting of his cousin who owned a commission shop in the neighbourhood, and the shooting of the applicant in June 2015 causing him to fall from his motorcycle and injure his leg. The applicant claimed that the attacks had been reported to the police but the assailants were eventually released due to the political affiliation between the Chaudry group and the Pakistan Muslim League (Nawaz).

5.After being discharged from the hospital, the applicant relocated to his sister’s place in Gurjanwala, Punjab in 2015, and then to an uncle’s friend’s place in Lahore in 2018. He eventually left Pakistan and arrived in Hong Kong through Shenzhen in November 2019.  The applicant said he learned from his family that the Chaudry group was still locating him, and he could not seek protection from the Pakistan police due to the influence of the Chaudry group.

The Director’s and the Board’s decision

6.The Director rejected the applicant’s claim on the torture risk[2], BOR 3 risk[3], BOR 2 risk[4], and persecution risk[5] grounds. The Director found material inconsistencies in the applicant’s account of the attacks which undermined the credibility of his claim. The intensity and frequency of ill-treatment personally experienced by the applicant did not attain a minimum level of severity capable of establishing non-refoulement protection. There was no substantial ground to believe that there will be a foreseeable and real risk of harm upon his return to Pakistan. The availability of state protection further lowers or negates the level of risk.

7.The applicant appealed to the Board.  A hearing took place on 7 December 2021 during which the applicant testified and answered questions from the Board.  By a decision given on 25 February 2022, the Board dismissed his appeal.

8.In gist, the Board found there was no plausible explanation for the delay of 16 months in lodging the non-refoulement claim, which casted doubt on the veracity of the applicant’s claim[6].  More importantly, the Board found that the centrepiece of his claim could not stand in light of the numerous and material discrepancies in his documentary evidence and oral testimony on the account of the various attacks, and could not be explained by his lapse of memory or miscommunication with those who assisted him in preparing his claim[7].  On his own evidence, all the assaults (except the shooting incident in June 2015)  were experienced by his family members, and the applicant has not suffered injury that met the minimum threshold required for non-refoulement protection[8].  Overall, the Board did not find the applicant a genuine claimant and did not accept that he came to Hong Kong to escape from the threats and harm of the Chaudry group[9].  Further, the Board, while acknowledged on the basis of the objective country of origin information (COI)  that problems of corruption exist in Pakistan; noted that the COI also showed the Pakistani authorities had adhered to the rule of law and performed their duties in addressing these problems and that state protection was reasonably available to the applicant[10].  The Board also considered that internal relocation was feasible, given that the applicant had lived in Gurjanwala and Lahore for four years uneventfully[11].  For these reasons, the Board concluded that the applicant had failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

9.By a Form 86 dated 13 April 2022, the applicant applied for leave to judicially review the Board’s decision.  According to his grounds of relief sought and his supporting affirmation of the same date, his grounds of challenge can be summarised as follows:

(1)  The Board had unlawfully fettered its discretion by refusing the appeal on the ground that it was not satisfied with the requirement.

(2)  The adjudicator had acted in a procedurally unfair manner and his decision was unreasonable or irrational as a result of procedural errors or unfairness, and had failed to meet the greater care and duty owed to a self-represented claimant.

(3)  The applicant was not given a fair opportunity to make submissions in an oral hearing, nor was he invited to submit written submissions to the Board or to reply to the submissions of the Director.

(4)  The Board had relied on source of news which is not officially recognised or is simply hearsay. The Board had also relied on cases which are outdated, resulting in its groundless speculation that it is safe for him to return to his country.   

10.The Judge held an oral hearing on 15 July 2024.  By a judgment dated 12 September 2024, the Judge refused to give leave for judicial review and gave his reasons at [19] to [24] as follows:

“19. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not take his evidence seriously and he asked the Court to review the Board’s Decision.

21. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

22. The Board found that the applicant was a dishonest witness and, for the reasons given, rejected his evidence.

23. The grounds raised in paragraph 18 and before the Court do not assist the applicant’s application. He was at liberty to make oral submissions before the hearing. The Board has no statutory duty to invite him to submit written submissions. This is not required under the advanced standards of fairness as held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187, 8 June 2004. The other grounds are only his personal opinions or comments without any evidence in support.

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

This appeal

11.On 13 September 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal:

“the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.The applicant’s written submissions lodged on 17 February 2025 state the following:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection. Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan[12][2014] 4 HKLRD 277.   

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions.

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions, v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

13.At the hearing of the appeal, the applicant said that his life would be in danger if he were refouled to Pakistan.  He also informed us that about 18 or 19 months ago he was married in Hong Kong, his wife who was born in the UK would like him to join her in the UK, and would make the relevant application after his non-refoulement application has concluded.

Discussion

14.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

16.In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits.  Our reasons are as follows:

(1)  The applicant fails to identify any error in the Judge’s decision. The complaints made in the Notice of Appeal and written submissions are directed solely at the Board’s decision.

(2)  The complaint in the Notice of Appeal as to the Board’s use of and reliance on the COI is vague and devoid of particulars.  The applicant has not identified which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.

(3)  The complaint in the written submissions that the Board did not approach the appeal as a rehearing is factually incorrect.  It is evident from the Board’s decision that it did not approach the appeal by simply reviewing the Director’s decision to see if it was justified. On the contrary, the Board gave independent and detailed consideration and analysis of the applicant’s claim, including his account of the various attacks as well as the COI materials before reaching its own finding and conclusion on the case.  

(4)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to his case or appeal.

(5)  The applicant’s assertion that he will face hardship or will be in danger if he returns to his home country cannot stand in light of the Board’s rejection of the centrepiece of his claim on credibility grounds.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. However, the applicant fails to advance arguable grounds in this appeal to challenge the factual findings made by the Board.

(6)  In respect of his contention that he did not have a fair opportunity to make submissions in an oral hearing or to submit written submissions to the Board or to reply to the Director’s submissions (see ground (3)  of his application for leave to apply for judicial review at [9] above), we would point out that, as explained in the Judge’s judgment at [23], the applicant was at liberty to make oral submissions at the hearing before the Board.  The Board has no statutory duty to invite him to submit written submissions.  Importantly, the applicant has not indicated with particulars what submissions he had intended, but did not have an opportunity, to make and how they would impact on the assessment by the Board.

(7)  As to the fact that the applicant is now married and his wife intends to apply for him to join her in the UK, this is not relevant to the applicant’s non-refoulement claim nor the issues in this appeal.

17.Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

Disposition

18.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person.