Ishtiaq Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 505/2024, [2025] HKCA 497

On Appeal from [2024] HKCFI 3093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 505 OF 2024

(ON APPEAL FROM HCAL NO 1039 OF 2022)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 13 November 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 28 September 2022, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 May 2020.

BACKGROUND

2.The Applicant is a national of Pakistan. He claimed that he entered Hong Kong illegally on 1 November 2019. He surrendered himself to the Immigration Department on 4 November 2019. He lodged his claim for non-refoulement protection by written representations dated 4 and 18 November 2019, and 16 December 2019 on the basis that, if refouled, he would be harmed or killed by an influential supporter (Safdar) of the Pakistan Muslim League (Nawaz) (“PML(N)”), and the gang members also associated with PML(N) because he as a supporter of the Pakistan Tehreek-e-Insaf (“PTI”) refused to support PML(N). Details of the Applicant’s claim were summarised by the Judge at §§4-8 of the CALL-1 Form.

3.By a Notice of Decision dated 11 May 2020 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decision to the Board. On 28 September 2022, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-12 of the CALL-1 Form, as follows:

“[9] The Applicant testified before the Board and advanced a new fear of harm arising from a land dispute with Safdar. He said that his family and Safdar were relatives. One day Safdar telephoned them and came to their home to ask for the land on which his family farmed. His explanation for not having mentioned the land dispute in his [Non-Refoulement Claim (‘NCF’)] was that the dispute assumed more importance since his arrival in Hong Kong.

[10] He also gave inconsistent evidence about the two incidents. In his NCF, he said the first incident took place after his return from Azerbaijan in March 2019 and the reason was his refusal to support the PML(N). However, he told the Board that the first incident happened around election time in 2018 when his aunt was killed and the reason for the attack was the land dispute. Another minor inconsistency is that he said in his NCF that his mother and sisters managed to escape and that other than his aunt who was killed no one else was injured. But he told the Board that his mother and sisters were assaulted and his mother suffered a head injury.

[11] As for the second incident, he told the Board that it occurred after his return from Azerbaijan, which was the time when the first incident occurred according to his NCF. He said as he was leaving his village he was followed and then attacked by Safdar and his gangsters. They shot and injured his ankle. Except for the timing and the injury at his ankle, this account is totally different. Contrary to his account in his NCF, it did not occur in Attock, he was not located by Safdar following his fiancée, there was no raid on the family and no assault on his mother and three siblings. It was after this attack that the Applicant and his family moved to Attock. He never saw Safdar and his gangsters thereafter. In short, except for the injury at his ankle arising from a different attack, the second incident which he described in his NCF never occurred. When confronted with the inconsistencies, the Applicant confirmed that his testimony before the Board was the truth. His explanation for the inconsistencies was that the incident happened a long time ago and he was not feeling mentally well at the hearing before the immigration officer.

[12] The Applicant could not provide a consistent account of the incidents in which he claimed he or his family were harmed. His account changed with time. He was unable to explain the serious and significant discrepancies in his account of the events. That led the Board to the conclusion that he was not a credible witness and that he concocted his evidence to advance a claim for protection. He had failed to establish the factual basis in support of his claim.”

THE JUDGE’S DECISION

5.On 3 October 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely stated that the Board made “many error[s]” in its decision.

6.On 13 November 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[15] … At the hearing, after the principles in the above section was explained to him, he said he had no complaint but leave it to the Court to examine the [Board’s] Decision and look for errors of law, procedural unfairness and irrationality in the [Board’s] Decision. His only complaint is that the situation in Pakistan is very difficult, PTI supporters are being persecuted, that Safdar’s gangsters are threatening his family and that they only managed to avoid harm by relocating. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the [Board’s] Decision.

Discussion

[16] Having rigorously examined the [Board’s] Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the [Unified Screening Mechanism (‘USM’)]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and rejected his evidence. This is a finding [of] fact solely within the realm of the Board. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the [Board’s] Decision. The [Board’s] Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The [Board’s] Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

THIS APPEAL

7.In his Notice of Appeal filed on 26 November 2024, the Applicant put forward the following ground(s) of appeal: “[t]he High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]

8.In his 3-page written submissions lodged on 14 April 2025, the Applicant stated that he disagreed with the decisions of the Director and the Board, and alleged that he believed his case had not been determined fairly. He also complained about not being provided with legal or language assistance, and that he did not fully understand how his case was determined.

9.At the hearing of the present appeal, the Applicant stated that the situation in his country was still unstable and there was danger to his life. He hoped that he could stay in Hong Kong.

DISCUSSION

10.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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

11.Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.The matters raised in the Applicant’s Notice of Appeal and written submissions are vague and general, and cannot constitute valid grounds of appeal against the Judge’s decision. His complaints about the lack of legal or language assistance are a new ground which was not raised in the proceedings below. He is not entitled to raise them for the first time in the Court of Appeal. In any event, they have no merit. The Applicant was provided with language assistance at the hearing of his appeal before the Board. He has failed to identify what possible meritorious ground(s) of appeal or review he could have advanced before the Board or the Judge but could not or did not do so because he did not have the benefit of legal and/or language assistance. It is well established that a non-refoulement claimant is not entitled to legal and/or language assistance at every stage of the non-refoulement claim process. The Applicant’s belief that his case was not determined fairly is a bare assertion without particulars. Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board and the consideration of the leave application by the Judge were both thorough and fair. We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.

13.The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

14.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person