AHMED MUNIR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 398/2023

[2025] HKCA 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 398 OF 2023

(ON APPEAL FROM HCAL NO. 825 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge K. W. Lung (“the Judge”) dated 21 November 2023 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 1 March 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 17 January 2017.

BACKGROUND

2.  The Applicants are all nationals of Pakistan. The 1^st Applicant is the father of the 2^nd to 4^th Applicants. He was married to his wife in Hong Kong on 29 April 2011. The 2^nd to 4^th Applicants were born on 27 August 2013, 2 December 2014 and 8 May 2016 respectively.

3.  The 1^st Applicant claimed to have entered Hong Kong illegally on 4 February 2010 and was arrested by the police on 5 February 2010 for illegally remaining in Hong Kong. After he was referred to the Immigration Department for investigation, he raised a torture claim on 8 February 2010, which was later taken as a non-refoulement claim.

4.  After the 2^nd Applicant was born, the 1^st Applicant lodged a non-refoulement claim on behalf of the 2^nd Applicant on 12 June 2014. The claims of both the 1^st and 2^nd Applicants were subsequently treated as withdrawn as they failed to return non-refoulement claim forms within the required time. On 1 June 2015, their claims were re-opened upon the 1^st Applicant’s request.

5.  On 11 July 2016 and 13 September 2016, the 1^st Applicant also raised non-refoulement claims on behalf of the 3^rd and 4^th Applicants respectively.

6.  In gist, the Applicants’ claims were all based on an allegation that, if refouled, they would be harmed or killed by Chaudahry Muhammed Zaheer (“Zaheer”), who belonged to a political party known as the Pakistan Peoples Party, due to a personal dispute between Zaheer and the 1^st Applicant. The 1^st Applicant further claimed that he would be killed or imprisoned for a false accusation made by Zaheer against him. Details of the Applicants’ claims have been summarised by the Judge at §§4-13 of the CALL-1 Form.

7.  The claims of the Applicants were jointly assessed by the Director. By a Notice of Decision dated 17 January 2017 (“the Director’s Decision”), the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

8.  The Applicants appealed the Director’s Decision to the Board. On 1 March 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§16-23 of the CALL-1 Form, as follows:

“[16] The [Applicants] appealed the Director’s Decision to the Board. On 23 October 2018, 26 October 2018 and 20 December 2018, the Board conducted an oral hearing for their appeals, during which they were legally represented and the 1^st applicant gave oral evidence on their behalves [18]

[17] The Board recapped the 1^st [Applicant]’s political background and his claims [29]-[79]. Having considered the evidence, the Board made the following findings. It accepted the 1^st [Applicant]’s political background and his positions as district councilor and the chairman of water supply board [86]. Nevertheless, it rejected the 1^st [Applicant]’s claimed past ill-treatments from the alleged political rivals [87]-[96].

[18] In particular, the Board found that the 1^st [Applicant]’s evidence on the 1^st attack from Zaheer’s people was not credible and, even if the shooting incident existed, the attackers apparently did not possess any intention to kill the 1^st [Applicant] [97]-[98]. Meanwhile, the Board also rejected the 1^st [Applicant]’s complaint about the police. It found that, as a district councilor, the 1^st [Applicant] was a prominent political figure who would have some general knowledge and connections with the police [99].

[19] Further, the Board rejected the 1^st [Applicant]’s claimed false robbery case against him as it was illogical and his evidence of being ill-treated in the police station was also contradictory [100]-[103]. Even if the alleged ill-treatments existed, the evidence did not suggest the level of severity had reached the minimum requisite level [104]-[105]. The Board also rejected the 1^st [Applicant]’s evidence on the help from an officer who believed that the 1^st [Applicant] was innocent as the assertion was simply a self-serving statement reinforcing his claim [106]-[107].

[20] As to the described court proceedings, the Board found it to be nonsensical and artificial, which was another fabrication to boost his claim [108]-[113]. For the same reasons, the Board also rejected the applicant’s evidence on the alleged second attack, the attack from the Maulvi and the 2^nd false accusation from Zaheer [114]-[129].

[21] Besides, the Board noted that the injuries sustained by the 1^st [Applicant] did not attain the minimum level of severity [130]. In addition, the Board refused to accept the 1^st [Applicant]’s assertion that Zaheer was influential and was able to locate him everywhere in Pakistan [131]-[137].

[22] After considering the country of origin information, the Board also found that state protection would be available to the [Applicants] [138]-[149] and internal relocation was also a viable option for them [150]-[155].

[23] In passing, the Board further provided reasons that none of the documents advanced by the 1^st [Applicant] would support their claims [156]-[169] and it considered and rejected the submission from the duty lawyer for the applicants that the local police, Zaheer and Zaheer’s people were state actors [170]-[177].”

THE JUDGE’S DECISION

9.  On 26 March 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision. No ground for seeking relief was given in the Form 86. In the 1^st Applicant’s affirmation of the same date in support of the Applicants’ joint application, he merely stated that the Director disregarded his dangerous situation. Since the Director’s Decision had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review.

10.  The Applicants attended an oral hearing before the Judge on 8 May 2023. On 21 November 2023, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“[27] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicants]’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board…

[28] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st [Applicant] confirmed that at the Board’s hearing, they were legally represented; that they had an interpreter for the hearing; and that the duty lawyer told him that it is the Board’s policy to reject their application. He further confirmed that he had received the court’s letter advising them to seek legal aid, but he decided not to apply for legal aid until he has appeared before the Court.

[29] It is clear that the [Applicants] were legally represented before the Board. Therefore, the Court of Appeal’s ruling in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 that the minors’ interest was not put to the Board for its separate consideration because of lack of legal representation does not apply to this application.

[30] The grounds in [the 1^st Applicant’s affirmation in support] are not valid to challenge the Board’s Decision.

[31] The [Applicants] fail to show that they have any realistic prospect of success in their proposed judicial review.”

THE APPEAL

11.  In their Notice of Appeal dated 4 December 2023 filed by the 1^st Applicant on behalf of the Applicants, the Applicants stated the following:

“We would like to reject and review the decision made by the court. They disregard my dangerous situation.” [sic]

12.  The Applicants have failed to lodge any written submissions in support of their appeal contrary to the directions given by the Registrar of Civil Appeals on 21 May 2024. Accordingly, they are deemed to have waived the right to have an oral hearing of their appeal and elected to have their appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicants’ appeal on paper without an oral hearing.

DISCUSSION

The 1^st Applicant’s appeal

13.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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, at §14(6)).

14.  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.

15.  The 1^st 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. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

The 2^nd to 4^th Applicants’ appeal

16.  The 2^nd to 4^th Applicants are minors. The Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33. In particular:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant. Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations. Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

(2)  When dealing with a non-represented minor’s application for leave to apply for judicial review of the Board’s decision, the court should pay special attention to the requirement of the high standard of fairness and examine whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.

(3)  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in any particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review or, where the court did find such underlying materials, with the consent of the Director, the court may dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation be provided for the minor at the rehearing before the Board.

(4)  On the other hand, if the court is satisfied that the Board had achieved the high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity.

17.  The Judge’s view that the above principles do not apply because the 2^nd to 4^th Applicants were legally represented is incorrect. However, in the present case, the 2^nd to 4^th Applicants’ claims were premised fundamentally on the 1^st Applicant’s claim. The Board, after considering the evidence in the case, rejected the 1^st Applicant’s claim on the facts. There was, accordingly, no factual basis which could support the 2^nd to 4^th Applicants’ non-refoulement claims on any of the applicable grounds. The Board also found that, in any event, both state protection and internal relocations would be available to all Applicants (see the Board’s Decision at §§138-155).

18.  We do not see any material that may give rise to a concern that there may be non‑refoulement grounds that related specifically only to the 2^nd to 4^th Applicants but had not been advanced to the Board.

19.  We are unable to see any viable ground of appeal against the Order in so far as it relates to the 2^nd to 4^th Applicants.

20.  For the avoidance of doubt, the non-compliance with Order 80 rule 2 of the Rules of the High Court, Cap 4A, in these proceedings is treated as a mere irregularity without rendering the 2^nd to 4^th Applicants’ appeal a nullity.

21.  In all, the Applicants’ appeal against the Order has no merit and is dismissed.